Cook v. Ziff Colored Masonic Lodge, No. 119

• Decision Date: 23 July 1906
• Citation: 96 S.W. 618
• Parties: COOK v. ZIFF COLORED MASONIC LODGE, NO. 119.
• Court: Arkansas Supreme Court

96 S.W. 618

COOK v. ZIFF COLORED MASONIC LODGE, NO. 119.

Supreme Court of Arkansas.

July 23, 1906.

Appeal from Chicot Chancery Court; Marcus L. Hawkins, Chancellor.

Action by A. F. Cook against the Ziff Colored Masonic Lodge, No. 119. From an adverse decree, plaintiff appeals. Reversed and remanded.

On June 9, 1902, lot No. 1 in block No. 2 of Finn's addition to the town of Dermott was sold by the collector of Chicot county for the nonpayment of taxes assessed against same for the year 1901, and was struck off to the state for the want of bidders. After the expiration of time for redemption the clerk certified the lot to the state, where it remained till the 28th day of June, 1904, when it was purchased by the appellant, A. F. Cook, who received a commissioner's deed in regular form for it. On the 9th of September the appellant brought suit in the circuit court of Chicot county for the possession of the lot against the "Ziff Colored Masonic Lodge, No. 119." The complaint is in regular form in ejectment, setting out and making exhibit of appellant's title from commissioner of state lands. On October 5, 1904, the defendant filed an answer, cross-complaint, and motion to transfer to chancery. The answer simply denies in general terms "that plaintiff, A. F. Cook, is the owner of, and entitled to the possession of, the land and lot set out in said complaint." Then by way of cross-complaint it stated that the state of Arkansas, appellant's grantor, "had title based upon an irregular tax forfeiture of said lot upon a pretended void tax sale for the nonpayment of taxes for the year 1901," and "the said deed conveyed no title to plaintiff for reason that the state of Arkansas had none; the said tax forfeiture being void and of no effect for the following reasons, viz.: That the said land was not returned delinquent by the `sheriff' at the time and in the manner prescribed by law. Second. That the collector and the clerk charged more costs than the law allowed upon his making sale of said land." Third. That the list of delinquent lands as returned by the "sheriff" had not been published for two weeks, as required by law. Fourth. That "said clerk of the county court, after making a list of said land returned delinquent for year 1901 by the `sheriff,' and after entering upon the record following said lists a notice of said sale intended for publication, wholly failed to make any certificate, as required by law, at the foot of said record, stating in what newspaper said list was published," etc. Fifth. That "said clerk wholly failed and neglected to make and enter upon the said record required to be kept for entering the list of delinquent lands any certificate, or to file any certificate and attach to said record at the foot thereof, or at any other place, stating that said list of lands and notice of said sale had been published in any newspaper," etc. Sixth. That "the only certificate said county clerk ever made of publication of said list and notice was made and attached to record on which he kept sale of delinquent lands." Seventh. That "there was more and a greater sum charged against said land than was due thereon, and that said lot was sold for more taxes than was allowed by law." Claimed that the title of plaintiff was void and a cloud, and moved to transfer to chancery to have it canceled. A demurrer was interposed to answer and cross-complaint, and to the motion to transfer to chancery, on the ground that the answer did not state a defense, or state facts sufficient to entitle defendant to transfer. The demurrer was overruled, and the cause transferred to chancery court; and on the 17th day of November, 1904, the cause was heard "upon the complaint and exhibit, the answer and cross-complaint of the defendant, the record of the delinquent list of the year 1901, notice of sale and certificate thereto attached," and the chancery court decreed the sale to the state void, and canceled plaintiff's title. At the same time and on the same issues three other cases, viz., A. F. Cook v. Isabella Williams, 96 S. W. 622, A. F. Cook v. Pauline Hunter, 96 S. W. 620, and A. F. Cook v. Eliza Slay, 96 S. W. 620, for other lots were submitted, to abide decree in this. Plaintiff has appealed in all four of the cases, and by agreement of counsel in the other three an order was made in this court for them to abide the decision here in this; the issues being the same.

Baldy Vinson, for appellant. Scipio A. Jones and P. C. Dooley, for appellee.

WOOD, J. (after stating the facts).

First The court did not err in overruling the demurrer to the answer. The appellee being in possession, the presumption is he was the owner or a tenant of the owner. It will not be presumed that his possession was wrongful. Possession is evidence of title at least to the extent of requiring one who would oust it to show title in himself. The requirement of the law is not met simply by showing prima facie title. The old rule in ejectment that the plaintiff must rely upon the strength of his own title applies here. The burden is upon the plaintiff to show title, not merely prima facie title. The answer presents a good defense to the action of ejectment. The authorities cited by appellant do not apply, for in resisting the assault made upon its possession appellee is not attacking the prima facie title of appellant. The...