Earle Improvement Co. v. Chatfield

• Decision Date: 07 January 1907
• Citation: 99 S.W. 84,81 Ark. 296
• Parties: EARLE IMPROVEMENT COMPANY v. CHATFIELD
• Court: Arkansas Supreme Court

99 S.W. 84

81 Ark. 296

EARLE IMPROVEMENT COMPANY v. CHATFIELD

Supreme Court of Arkansas

January 7, 1907

Appeal from Crittenden Chancery Court; Edward D. Robertson. Chancellor; affirmed.

Albert H. Chatfield was in 1897 the owner of the northeast quarter of section thirty-three, township eight north, range six east. Taxes for that year not having been paid, the land was sold for said taxes on June 13, 1898, to W. N. Brown, Jr. and, the same not having been redeemed within two years, a deed was made to said Brown by the clerk on the 7th day of July, 1900, which deed was put on record July 11, 1900.

Brown paid the taxes of 1897 by his purchase at the tax sale, and subsequently paid the taxes of 1898, 1899, 1900, 1901, 1902 and 1903.

Chatfield filed his complaint in chancery against the Earle Improvement Co., the Southwestern Improvement Co., and R. G. Brown trustee, on the 12th day of December, 1904, alleging that he was in the possession of said land at the date of the filing of the complaint; that the tax sale was void (a) because the lands were never published as being delinquent for the taxes for the years aforesaid, and (b) because the proof of the advertisement of the delinquent list was not made as required by law; that the tax deed was a cloud upon his title; that the Earle Improvement Co., successor in title to W. N. Brown Jr., was about to commit trespass on said land by cutting timber therefrom. The prayer of the complaint was that the defendants be restrained from cutting the timber, and that the deed be set aside as a cloud upon plaintiff's title.

The defendants moved to transfer to the law court, upon the ground that the complaint does not aver that the lands are wild lands; that the complaint affirmatively shows that the defendants are in possession of the lands, exercising acts of dominion and control over same, and claiming title thereto and the defendants averred that they and their grantor, W. N. Brown, Jr., had been in the open, notorious and adverse possession of said lands since the 7th day of July, 1900. This motion to transfer was, on March 1, 1905, overruled, and the defendants saved exceptions.

Defendants then filed their answer, admitting that the title to the lands was in Chatfield at the date of the tax sale; denying that there was any informality in the tax sale, or that same was void for any reason; denying that the plaintiff was in the possession of the lands, or had ever been since the date of the deed to W. N. Brown, Jr.; and admitting that the Earle Improvement Co. was at the date of the filing of the complaint engaged in the cutting of the timber on the lands.

The answer further averred affirmatively that Brown and his grantees had paid the taxes of 1897, 1898, 1899, 1900, 1901, 1902 and 1903, before the institution of the suit, and pleaded section 5057, Kirby's Digest, as a defense.

The defendants further averred that the plaintiff had been guilty of laches in not commencing his action sooner; that the land had largely increased in value since the purchase at the tax sale; that they had been sold and transferred of record, with warranty of title; and that the situation of the parties had greatly changed.

The defendants further affirmatively pleaded that, after Brown had obtained his tax deed from the clerk in 1900, he went into the open, notorious and visible possession of the lands, using them as a wood lot and pasture appurtenant to his farm lands, which lie adjacent to same; and that he and his grantees have ever since been in the open, notorious and visible possession of same, claiming them against all the world. The defendants therefore pleaded the two years' statute of limitations (S. & H. Digest, § 4819) in bar of the action.

The defendants further averred that the action, while in form a bill to quiet title and to remove cloud from title, was, in fact, an action to obtain possession of the land; that the plaintiff had not tendered the defendants the amount of taxes paid by them and their grantor, W. N. Brown, Jr., since the date of the tax sale, with interest, penalties and costs, nor had he filed in the office of the clerk an affidavit showing such tender before the issuance of the writ herein. Defendants therefore pleaded such failure to make such tender and to file said affidavit as a defense to the action.

Issue was thereupon joined upon the above pleadings.

Evidence was introduced tending to prove the alleged defects in defendants' tax title.

There was evidence tending to show that W. N. Brown, Jr., during the years 1900-1903 cut timber from this land, which he used for firewood, rails, posts, boards, etc., and that at various times he permitted several of his tenants, occupying other land, to cut several hundred cords of wood from this land.

There was evidence that in 1900 the land was worth $ 1 per acre, . and in 1904 $ 10 per acre.

The court decreed for plaintiff on his refunding the taxes paid by defendants. The latter have appealed.

Decree affirmed.

R. G. Brown, for appellants.

1. The case should have been transferred to law. In denying that plaintiff was in possession at the date of filing suit, both in the motion to transfer to law and in the answer, this raised an issue of fact, which the defendant was entitled to have tried by a jury. 57 Ark. 594.

2. In an action to quiet title, the defendant is entitled to have all taxes paid by him refunded; and the court in this case erred in refusing to give judgment for the taxes of 1897 paid by defendant's grantors. 70 Ark. 256.

3. The facts in this case disclose such laches on the part of plaintiff as ought, in equity, to defeat him. 143 U.S. 224; 169 U.S. 237; 145 U.S. 317; 91 U.S. 587.

4. The land had been, at the time suit was brought, in the open, notorious, actual and adverse possession of appellants and their grantors for more than the statutory period.

Cutting firewood and timber on an adjoining farm is an act of possession. 48 Ark. 312. See also 89 S.W. 1002.

Neither actual occupation, cultivation or residence is necessary to constitute actual possession when the property is so situated as not to admit of any permanent or useful improvement, and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property which he did not claim. 35 Miss. 490; 85 Miss. 292; 1 Cyc. 893. There is no rule of law that title by adverse possession can be gained only by certain particular methods of occupation. 135 Miss. 13. If a person enters upon land under claim of title, and uses it thereafter as a wood lot appurtenant to his farm in the usual and ordinary way, and exercises such acts of ownership over it as are necessary to enjoy it, such acts amount to actual possession. 87 Ill. 587; 18 Ill. 539; 29 Ia. 502; 122 Mich. 6; 65 Mich. 670, 111 Mo. 404; 87 Me. 316.

T. E. Hare, for appellee.

1. The sale was void by reason of the failure to record the delinquent list and notice of sale, with his certificate at the foot of the record showing in what newspaper the list was published, before the day of sale. 55 Ark. 218; 68 Ark. 248; 61 Ark. 36; 65 Ark. 595.

2. If the cutting of wood and getting of timber occurred on the land as testified to, it was not sufficient to give title by adverse possession under the tax deed, these acts being at best only fitful acts of ownership, which do not start the statute of limitations or constitute adverse possession. 75 Ark. 421; 68 Ark. 551; 57 Ark. 97; 49 Ark. 266; 43 Ark. 486.

3. There was no error in refusing to transfer to the law court. A bare allegation in the motion that defendants were in actual possession, not supported by affidavits, was not sufficient to require the court to transfer to the law court. Neither did they, after answering, produce proof to justify a transfer.

4. There is no such showing of laches appearing in the record as will defeat the claim of the appellee. The increase in value of the land involved is not peculiar to that particular land, it has increased in value throughout the country; and the claim of various sales and transfers of the land is not supported by the proof--no deed of conveyance affecting the land is brought into the record. There is no showing of bona fide purchases of the land. Hence no one is injured by delay in bringing the suit. 76 Ark. 525; ib. 172; 75 Ark. 382. The length of time during which the party neglects to assert his rights which must pass in order to show laches, varies with the peculiar circumstances of each case. It is not subject to arbitrary rule. The length of time must be so great and the relations of the defendant to the rights such that it would be inequitable to permit the plaintiff to assert them. 152 U.S. 416.

OPINION

WOOD, J.

First. The court did not err in overruling the motion to transfer to law. The complaint stated that plaintiff was in possession of the land, set up his title, and asked to have same quieted. This gave the chancery court jurisdiction. Lawrence v. Zimpleman, 37 Ark. 643. The court must look to the allegations of the complaint, in limine, to ascertain whether it had jurisdiction. The complaint did not affirmatively show that the defendants were in possession, as alleged in the motion to transfer.

The chancery court did not lose its jurisdiction because defendants moved to transfer to law, alleging that they were in possession. Defendants answered, alleging a tax title, and setting up adverse possession under the two years' statute of limitation. But nothing was developed in the proof to show that the cause was not one of original equitable cognizance.

The lands, it appears from an agreement of record, were wild and unoccupied. The appellee had...