Cotton v. White

• Decision Date: 29 October 1917
• Docket Number: 204
• Citation: 199 S.W. 116,131 Ark. 273
• Parties: COTTON v. WHITE
• Court: Arkansas Supreme Court

199 S.W. 116

131 Ark. 273

COTTON v. WHITE

No. 204

Supreme Court of Arkansas

October 29, 1917

Appeal from Boone Chancery Court; T. H. Humphreys, Chancellor reversed.

Decree reversed and remanded.

J. M Shinn and Troy Pace, for appellant.

1. Appellee is barred by the statute of limitations. Kirby's Digest, § 5061; 77 Ark. 324; 20 Id. 508; 20 Id. 542; 60 Id. 163, 499; 71 Id 117; 53 Id. 418; 82 Id. 80; 59 Id 460.

2. Appellant had the right to accept attornment from Patrick although a tenant of appellee. 53 Ark. 238; 47 Id. 351; 17 Id. 546; 21 Id. 160; 45 Id. 177.

3. Appellee fails to show title in himself and can not maintain this action. He must succeed upon the strength of his own title. 95 Ark. 445; 37 Id. 643; 77 Id. 338; 82 Id. 295; 88 Id. 37; 90 Id. 420.

4. The lands are not sufficiently described in any of appellee's deeds. There is no proof of actual possession for two years. Appellee has paid no taxes since 1906, except a redemption. 74 Ark. 383. A redemption is not a payment of taxes. 83 Id. 520.

5. The tax sale of 1907 was valid and the description good, and therefore appellant by his purchase acquired a valid title. No forgery by erasure or interlineation was shown. Kirby's Digest, § 7086, provides that the clerk shall keep a record of delinquent lands, etc. The record alone can be looked to. 55 Ark. 30; 100 Id. 488; 51 Id. 34; 55 Id. 218. It can not be contradicted by parol evidence. 61 Id. 36; 68 Id. 248. Errors may be corrected. Kirby's Digest, § 7031.

6. As to indefinite descriptions, see 111 Ark. 220; 56 Id. 44; 45 Id. 17.

7. In conclusion, appellee is barred, he has failed to establish title in himself, as to the lands conveyed by clerk's deed, he has not complied with § 7105, Kirby's Digest; the descriptions are valid, the tax sales regular and appellant has acquired valid title to the lands.

C. M. Cooke, for appellee.

1. The description was void for uncertainty. 59 Ark. 460; 50 Id. 484; 56 Id. 172; 62 Id. 188. The deeds are not color of title and the two years' statute is no bar. A tenant can not dispute his landlord's title. 27 Ark. 50; 28 Id. 143; 84 Id. 220. Nor can a third person make use of his possession thus acquired to found a hostile claim to the landlord. Tiedeman, Real Property, Art. 171; 26 Barb. 443; 28 Ark. 153; 28 Id. 153; 39 Id. 136; 43 Id. 28. Patrick was appellee's tenant. Defendant's possession was not adverse. 76 Wis. 555; 45 N.W. 418. The deeds were not even color of title. 50 Ark. 484; 3 Id. 18; 30 Id. 640; 40 Id. 237. Appellant acquired no better title by the tax sale of 1910. 62 Ark. 188. The deeds to appellee sufficiently describe the lands to identify them.

2. It is presumed that the officers who executed the deeds were authorized to do so. 90 Ark. 420. The corporation would be estopped to deny its corporate existence. As against it appellee would have title and right of possession. 31 Ark. 274; 36 Id. 464. In cases like this it is only necessary to show such title that if the cloud raised by defendants' unfounded claim were removed, plaintiff would have a reasonably clear title. 37 Ark. 643.

3. Ejectment may be maintained upon the prior possession, or if parties through whom he claims, such possession being a sufficient prima facie title. 15 Cyc. 30; 21 Ark. 62; 31 Id. 334; 33 Id. 150; 40 Id. 108; 62 Id. 51.

4. It was not necessary to prove payment of taxes for seven years. The proof shows that the taxes were paid until the void forfeiture in 1907. Kirby's Digest, § 5057, refers only to wild and unimproved lands, not in actual possession. The lands here were under fence, in cultivation and a house built.

5. Appellants' deeds were void. 56 Ark. 172. It was the duty of the clerk to correct errors found in his tax books (Kirby's Digest, § 7031), but it was beyond his powers to make the changes after the assessment and publication. 5 How. 365.

6. A tenant can not purchase the landlord's title. 21 Ark. 160. Tenants can not acquire title by limitation under a tax deed, their possession not being adverse. 77 Ark. 570; 33 Id. 195; 61 Tex. 302.

7. The void tax sale did not extinguish appellee's title. 62 Ark. 194; 15 Id. 363. Appellant acquired no title by adverse possession for two years. 62 Ark. 213. The descriptions are insufficient. 120 Ark. 528; 122 Id. 376. Adverse possession must be open, visible and notorious. 92 Ark. 30. The deeds should be canceled, and the title quieted in appellee.

STATEMENT OF FACTS.

On July 26, 1914, appellee brought suit in the Boone Chancery Court, alleging that he was the owner of the following land situated in Boone County, Arkansas, towit:

Commencing in the middle of the main channel of Crooked Creek, five chains due west of a point on line between the northeast quarter of northeast quarter and northwest quarter of the northeast quarter of section 1, township 18 north, range 20 west, 76 poles and forty links south of mutual corner of said tract on north line of said section, running thence north 46 degrees west, 4 chains to a branch; thence up said branch with meanderings of same 28 poles to a post oak marked "K;" thence north to north line of said section 1; thence west to the northwest corner of the northwest quarter of the northeast quarter of said section 1; thence south to the southwest corner of the southwest quarter of the northeast quarter of said section 1; thence east to the dividing line between the lands of David Smith, Sr., and Samuel Milum; thence to the division line between the northwest quarter of the southeast quarter and the southwest quarter of the southeast quarter of said section 1; thence east to the center of southeast quarter of said section 1; thence north to the northeast corner of the northwest quarter of the southeast quarter of said section 1; thence due east to the middle of the main channel of Crooked Creek; thence down said creek to the beginning point, containing 98 acres more or less, and being a part of the west half of the northeast quarter; part of the northwest quarter of the southeast quarter and part of the southeast quarter of the northeast quarter of section 1, township 18 north, range 20 west.

That the same was assessed for the year 1907, as follows, to wit:

SECTION 1, TOWNSHIP 18, RANGE 20.

Pt. NW. NE., W. Pt. SE. NE., 50.96 acres

Valuation $ 250

N. Pt. SW. NE., 20.04 acres

Valuation $ 100

E. Pt. NW. SE., 27 acres

Valuation $ 150

That after the lands were returned delinquent under the above description, the tax books and delinquent list were fraudulently altered so as to describe the said lands as follows:

E Pt. NW NE, W Pt. SE NE, 50.96 acres.

N 1/2 SW NE, 20.04 acres.

E 27/40 NW SE, 27 acres.

That all of the above lands, by the latter description, were sold to the State of Arkansas on the second Monday in June, 1908, and after the second Monday in June, 1910, the clerk certified the same by the latter description as having been sold to the State, and on June 15, 1910, defendant purchased from the State Land Commissioner the N 1/2 SW 1/4 of the NE 1/4 and the E 27/40 of the NW 1/4 of the SE 1/4, both in section 1, township 18 north, range 20 west, and procured deed therefor.

Plaintiff further alleged that, on April 24, 1914, plaintiff redeemed from the State the following lands, towit:

E Pt. NW NE, W Pt. SE NE, above section, township and range; paying all taxes due on same up to and including the year 1913, and that this portion of his lands embraces part of the NW of the NE and part of the SW of the NW and part of the SE of the NE, section 1, township 18 north, range 20 west, and this, with the 47.04 acres bought by the said defendant from the State Land Commissioner, is all the land plaintiff claims, being 98 acres, more or less.

Plaintiff further alleged that for the year 1910, the following lands were erroneously placed on the tax books and were sold by the collector of taxes to the defendant, towit:

W 1/2 NW NE, 18 acres.

W 1/4 SE NE, 6 acres.

S 1/2 SW NE, 20 acres.

N 1/2 SW NE, 20 acres, all in section 1, township 18 north, range 20 west.

Plaintiff deraigned title from the Bartles Lead & Zinc Company, a corporation, back to the original enterers of the land, and asked that the defendant's deed from the Commissioner of State Lands, and the four deeds from the clerk of Boone County, be removed as clouds upon his title.

Defendant's answer denied plaintiff's ownership of the lands in question, and denied that the tax titles relied upon by defendant were void as alleged, and further pleaded the statute of limitations of two years as to the N 1/2 of the SW of the NE and the E 27/40 of the NW of the SE of section 1, township 18 north, range 20 west, alleging that he had been in actual possession thereof since June, 1910.

The chancellor found, from the evidence, that the lands claimed by plaintiff were assessed for the year 1907 in the name of H. A. Bower and described on the tax books as follows, towit:

Pt. NW NE.

W Pt. SE NE, 50.96 acres.

N Pt. SW NE, 20.04 acres.

E Pt. NW SE, 27 acres, section 1, township 18 north, range 20 west.

He found that there were erasures made both on the tax books and on the record of the notice of publication of the delinquent lands and interlineations made thereon, changing the N Pt. SW NE 20.04 acres to read N 1/2 SW NE 20.04 acres, and the E. Pt. NW SE 27 acres to read, E 27/40 NW SE, 27 acres.

The chancellor held that the description in the assessment and in the notice of delinquent lands as N Pt. SW NE, 20.04 acres, and E Pt. NW SE, 27 acres is a good description and sufficient to identify the lands in question. He accordingly decreed that the defendant's title thereto should be quieted as against the plaintiff.

He further found that defendant acquired no title to W 1/2 NW NE, S1/2 SW...