Cooper v. Lee

• Decision Date: 13 October 1894
• Citation: 27 S.W. 970,59 Ark. 460
• Parties: COOPER v. LEE
• Court: Arkansas Supreme Court

27 S.W. 970

59 Ark. 460

COOPER v. LEE

Supreme Court of Arkansas

October 13, 1894

Appeal from Drew Circuit Court CARROLL D. WOOD, Judge.

Judgment affirmed.

H. King White and W. T. Woolridge for appellant.

1. N NE. sec. 3 is no description at all. It must be such as would be sufficient for a surveyor to survey and locate the boundaries. 30 Ark. 657; 50 id. 484; 56 id. 172.

2. Plaintiff was not barred by the statute of limitations, under sec. 4475, Mansf. Digest. 15 Ark. 363; 32 id. 131; 46 id. 96; 55 id. 192.

Rector & Collins also for appellant.

Wells & Williamson for appellee.

1. The legislature may prescribe that two years adverse possession bars a tax title. 20 Ark. 508; Ib. 542; 21 id. 370; 53 id 404; Mansf. Dig. sec. 4475.

2. N NE. sec. 3 means N. half NE. quarter, sec. 3, and nothing else, and is sufficient.

RIDDICK, J. Bunn, C. J., and Wood, J., being disqualified, did not participate in the decision of this cause.

OPINION

RIDDICK, J.

This was an action of ejectment, brought by the appellant against appellee to recover possession of the following tract of land in Drew county, Ark., to-wit: The N. half of the NE. quarter of Section 3, Township 15 S., R. 6 West of 5th principal meridian. Appellee in his answer alleged, in substance, that he became the owner of the land by virtue of a purchase of the same at a sale of lands lawfully held by the sheriff and collector of Drew county in the year 1887 for the non-payment of taxes for the year 1886; that the same had not been redeemed; that a deed in due form of law had been made and delivered to him by the clerk of said county conveying said lands to him; that under said deed he had taken actual possession of said land; and that he had been in the open, adverse and continuous possession of said land for over two years before the commencement of this action, and that appellant's right of action was barred. The case was submitted to the court sitting as a jury, and, the finding and judgment being against appellant, he appealed.

It is contended that the tax title under which defendant holds is void for several reasons. The description of the land by which it was advertised and sold is as follows: "N. NE. Section 2, Township 15, Range 6, 87.19 acres."

A description of the land sufficient to identify it and notify the owner is essential to a valid sale in a proceeding to sell land for the non-payment of taxes. Was the above description sufficient to authorize a valid sale? A question similar to this came for determination before the supreme court of Minnesota. The land had been described in the tax proceedings as follows: S. 2 N.E. 4 of a designated section, township and range. The court from which the case was appealed had permitted evidence to be introduced to show that such descriptions in that locality were common, and the meaning thereof. In deciding the case, the court said: "We are of the opinion that the attempted description is fatally defective. As is found in this case by the court below, there may be a local usage in that part of the State where the judgment was entered, according to which this description would be understood to mean the south half of the northeast quarter, * * but there is no general usage of this kind. Neither is this the import of the letters and figures employed, according to the common and ordinary usages of the English language, as the same is spoken or written in this State or in general, nor as it is used in the judgments of the courts." Keith v. Hayden, 26 Minn. 212; 2 N.W. 495. The supreme court of North Dakota followed this ruling in a case where the sufficiency of a similar description was involved. "We hold," said the court, "that the alleged description is wholly insufficient as a description of the lands in question, or of any lands, and that it cannot be sustained as a means of identifying the lands for purposes of assessment for taxation, or for the ulterior purpose of transferring the title of the realty from the general owner to the tax-title holder and his successors in interest. The alleged description is neither written out in words, nor is the same expressed by characters or abbreviations commonly used by conveyancers, or generally understood and used by the people at large in describing land." Power v. Larabee, 2 N.D. 141, 49 N.W. 724.

It is said that the purposes in describing the land are "First, that the owner may have information of the claim made upon him or his property; second, that the public, in case the tax is not paid, may be notified what land is to be offered for sale for the non-payment; and, third, that the purchaser may be able to obtain a sufficient conveyance." Cooley on Taxation (2d ed.), 405. A description of land in a tax proceeding that does not sufficiently identify it "defeats one of the most just and obvious purposes of the statute--that of giving the owner notice that his land is to be sold, so that he may pay the tax and prevent the sale," or at least redeem his land before the expiration of the time allowed for that purpose. To effect the laudable purpose of protecting the owner, the description should be such as will be...