Coulter v. O'Kelly, 5-1026

• Decision Date: 29 October 1956
• Docket Number: No. 5-1026,5-1026
• Citation: 226 Ark. 836,295 S.W.2d 753
• Parties: Murray Whitfield COULTER and George Prothro Coulter, Appellants, v. John O'KELLY and Mary O'Kelly, his wife, et al., Appellees.
• Court: Arkansas Supreme Court

Page 753

295 S.W.2d 753

226 Ark. 836

Murray Whitfield COULTER and George Prothro Coulter, Appellants, v. John O'KELLY and Mary O'Kelly, his wife, et al., Appellees.

No. 5-1026.

Supreme Court of Arkansas.

Oct. 29, 1956.

Rehearing Denied Dec. 17, 1956.

Leffel Gentry and U. A. Gentry, Little Rock, for appellants.

McMillan & McMillan, Arkadelphis, J. R. Wilson, El Dorado, Thomas E. Sparks, L. Weems Trussell, Nona Lee Trussell, Fordyce, for appellees.

SEAMSTER, Chief Justice.

The appellants, Murray Whitfield Coulter and George Prothro Coulter, filed this action in the Dallas Chancery Court on April 13, 1954, to quiet title to certain lands located in Dallas County, Arkansas. Certain stipulations were introduced in the record. At the close of appellants' testimony and upon motion of appellees, the trial court dismissed the complaint for want of equity. This appeal follows

The appellants alleged in their complaint that they owned three separate 80 acre tracts of land located in different sections of Dallas County. The appellees were all made defendants to the complaint and were called upon to show what interest, if any, they claimed in the lands. The appellees, W. P. Sturgis, C. F. Sturgis, L. Weems Trussell, J. R. Wilson and Mabel I. Wilson, his wife, all filed answers and cross-complaints.

The above named appellees contended as their sources of title, that they owned two of the 80 acre tracts of land by reason of deeds from the State Land Commissioner and payment of taxes for 17 years. The Land Commissioner issued his deeds on the strength of a tax title due to the fact that the taxes were not paid on said tracts in the year 1933, and the lands were sold to the State as delinquent tax lands.

The appellees further contend, as to one of the above mentioned 80 acre tracts, that E. W. Prothro conveyed the land to Frank Cathey and they were successors in title to the said Frank Cathey.

The appellants answered the cross-complaints and admitted that said appellees, or their predecessors in title, had acquired tax deeds from the State Land Commissioner. However, the appellants contend that the sale of the lands for taxes was void for several reasons set out in appellants' pleading.

The other appellees filed separate answers setting up the defense that they were innocent purchasers for value of the lands and that they were in actual possession of said lands. They also claimed that they and their predecessors in title had been in open, notorious, continuous and peaceable possession of said lands for more than fifteen years and had made valuable improvements upon the respective tracts of land.

The appellants introduced in evidence three deeds of record. Two deeds were from W. A. G. Woodward, Trustee in Bankruptcy of the Estate of Harris Brothers, to E. W. Prothro, as grantee. In these two deeds the grantor conveyed 'all my right, title and interest as such trustee (including all rights vested in E. T. Hays, Trustee, under a deed of trust dated April 15, 1931, executed by John R. Harris, Neil M. Harris, W. L. Harris, Versa Sue Harris, Sweet Harris, and John R. Harris, as guardian of C. C. Harris, and recorded in Record Book Vol. 'G.G.' page 418, of the records of Calhoun County, Arkansas, and free and clear of any claim on the part of the estate of John R. Harris, bankrupt).' The first of these deeds was dated August 17, 1933, and filed for record in Dallas County on September 5, 1933; the second deed was dated August 28, 1933 and filed for record in Dallas County on October 29, 1955.

The third deed was from E. W. Prothro, conveying the above mentioned lands to the appellants. This deed was dated August 28, 1933, and was filed for record in Dallas County on October 29, 1955, after the commencement of this suit. Each of the three deeds mentioned above, also conveyed other lands not here in question. None of the deeds mentioned contained a warranty of title.

There was also introduced into the record the birth certificates of the two appellants, for the purpose of showing that the suit had been brought within the time provided by law after appellants had reached their majority.

The record also reveals that the parties stipulated to the following:

(1) W. P. Sturgis and C. F. Sturgis acquired the North Half of the Northeast Quarter * * * by deed from L. Weems Trussell now of record in Book 33, page 292 and paid therefor the sum of $2,400. (Tr. 100).

(2) W. P. Sturgis and C. F. Sturgis acquired the South Half of the Southeast Quarter from J. R. Wilson by deed of record in Book 20, page 5 and paid therefor the sum of $750. (Tr. 101).

(3) The defendants Sturgis acquired the property for a valuable consideration and without notice either actual or constructive of the claims of the plaintiffs or either of them.

(4) The record of payment of taxes shown by the certificate of Ed Baker and which shows the payment of taxes for the years 1937 through 1953, inclusive, by Sturgis Brothers or their predecessor in title. (Tr. 98 and 99).

(5) It is stipulated between plaintiffs' attorney and attorney for defendants John O'Kelly and Mary O'Kelly and Bruce McAlister and Grace McAlister that these named defendants are bona fide purchasers of the West Half of the Northwest Quarter, Section 20, Township 10 South, Range 14 West in Dallas County, Arkansas, are now in possession of this tract of land, claiming to be the owners of the same.

The records set out in the stipulations were introduced in evidence. At the close of appellants' testimony and upon motion of appellees, the trial court dismissed the cause for want of equity.

For reversal, the appellants contend:

'1. Plaintiffs made out a prima facie case;

'2. The mere prior recording of the deeds to the defendants without showing that the grantors had title and the right to convey would not, within itself, give priority over plaintiffs' holding under an unrecorded deed from the rightful owner;

'3. The burden was not on plaintiffs to prove that the deed from E. W. Prothro to Frank Cathey was a forgery until the defendants put the deed in evidence. When, and if, the deed was introduced, the plaintiffs had the right to rebut the evidence by showing the invalidity of the deed.'

The stipulations admit that defendants are bona fide purchasers of the tracts of land; that defendants O'Kelly and McAlister are in possession of their tract of land; and, that the Sturgises and predecessors in title had paid taxes, for more than 15 years, on the wild and unimproved tracts of land. This makes a presumption of law that the Sturgises have a title to the land. See Sec. 37-103, Ark.Stats., 1947.

The above mentioned statute was upheld in the case of Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W.2d 193. In this case the title was quieted in Scheid due to the fact that he had paid the taxes on wild and unimproved land for more than 15 years, as against the record owners of the land.

The appellants contend that since they were minors during the time appellees acquired their title and also since they brought their suit within three years after attaining their majority, that they have a right to maintain this suit. This contention would be correct if appellants introduce sufficient proof to show they have title to the land.

The appellants further contend that had the appellees introduced the Cathey deed, they were prepared to show the deed was a forgery. Also, that had appellees introduced their tax deed, appellants were prepared to show that said deeds were void.

The stipulations admit that appellees have such a title to the lands so as to make this case an adversary suit, since it shows that appellees are bona fide purchasers and in possession, or have paid the taxes on the wild and unimproved land for more than 15 years. The law is well settled in this state, that appellants would have to recover on the strength of their own title, and not on the weakness of appellees' title. Greer v. Vaughan, 128 Ark. 331, 194 S.W. 232; McClelland v. McClelland, 219 Ark. 255, 241 S.W.2d 264; Gibbs v. Pace, 207 Ark. 199, 179 S.W.2d 690; Sanders v. Baker, 217 Ark. 521,...