Fordyce v. Vickers
| Decision Date | 26 June 1911 |
| Citation | 138 S.W. 1010,99 Ark. 500 |
| Parties | FORDYCE v. VICKERS |
| Court | Arkansas Supreme Court |
Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor reversed.
Wiley & Clayton, for appellant.
1. Appellant is not guilty of laches. That defense can be grounded only upon abandonment or long neglect of the land by a plaintiff concurring with acts by a defendant, induced by that abandonment, sufficient to raise an estoppel against the plaintiff. In legal significance, laches is not delay merely but delay that works a disadvantage to another. Mere delay for a period less than the statutory period of limitations is not laches. 94 Ark. 221; 92 Ark. 497; 81 Ark. 432; Id. 352; 76 Ark. 525, 528; 72 Ark. 101; 93 Ark. 298. Laches will not start against one until there has been some invasion of his rights to call him into action, and some one to proceed against. 88 Ark. 394, 404: 75 Ark. 194; 70 Ark 256, 261. Neither will it start against one whose land has been sold for taxes until the expiration of the two years allowed in which to redeem. 81 Ark. 296, 302.
2. Appellee's tax title is void because the 40-acre tract was included in the N 1/2 of NE 1/4 of section 27, which was assessed as a whole, and the taxes extended against the same as a whole, on the tax book. The collector was not authorized by law to separate and receive taxes on a part of the N 1/2 NE 1/4 only, and return the other part delinquent. 77 Ark 519. As to the 160 acres, the sale was void because the sale was held on a day not authorized by law. The delinquent list was not filed, nor published, within the time allowed by law. Kirby's Dig., §§ 7083, 7085, 7087; 55 Ark. 549; 77 Ark. 324; 70 Ark. 256; 54 Ark. 665; 33 Ark. 748.
3. Appellant's title was good. After he obtained his deed from the State who held title by forfeiture for taxes, he had his title confirmed under the law enacted for that purpose in force in 1890. Rev. Stat. ch. 149, Mansfield's Dig., §§ 576 to 583. The decree of confirmation recites and shows a full compliance with the statute as to all steps necessary to give the court jurisdiction and to entitle petitioner to the confirmation decree. It is binding on the world, and its effect is to cure all defects and irregularities in the tax forfeitures on which the State's deed was based. Mansf. Dig., § 581; 21 Ark. 364; 20 Ark. 114; 62 Ark. 421; 42 Ark. 330; 55 Ark. 470.
Pettit & Pettit and Ratcliffe, Fletcher & Ratcliffe, for appellee.
The proof shows that appellant purchased the land in 1882, and did nothing with it thereafter except to have his tax title confirmed in 1890; that he paid no taxes thereon, but allowed others to pay the taxes until, on their ceasing to pay the same, it was again forfeited and was purchased by the appellee. The presumption is that appellant abandoned the land, or that he was indifferent to iris duty to the State. His laches need not have caused injury to appellee. It is sufficient if he neglected his duty to the State in the payment of the taxes. 139 U.S. 380; 81 Ark. 352.
OPINION
This was an action instituted by S.W. Fordyce, the plaintiff below, to quiet his title to two tracts of land situated in Arkansas County, and to cancel tax deeds held by the defendant, A. C. Vickers, therefor. The defendant being in possession of one of said tracts, an ejectment suit was instituted therefor in the circuit court on July 8, 1908 and, the other tract being wild and in the possession of no one, a suit was instituted in the chancery court on the same day to quiet plaintiff's title thereto. The ejectment suit was by consent of the parties transferred to the chancery court, and both cases consolidated in that court. The actions then proceeded as a suit to quiet the title of plaintiff to the two tracts and to cancel the tax deeds under which defendant claimed to own same.
The plaintiff claimed title to the two tracts by virtue of tax deeds executed to him and his grantor on July 29, 1882, and August 5, 1882, respectively, by the proper official of the State, same having been forfeited to the State for the non-payment of the taxes thereon for prior years; and also by virtue of a decree of the chancery court of Arkansas County rendered on March 13, 1890, duly confirming the title acquired by the plaintiff under said tax deeds.
It is not claimed upon this appeal by counsel for defendant that said decree confirming the tax title of plaintiff to said lands is not valid and binding, and it follows that plaintiff has a good and perfect title to said lands, and is entitled to a decree quieting his title unless the defendant acquired a title thereto subsequent to the rendition of said decree, or unless the plaintiff's title is barred by the statute of limitation or by laches.
The defendant claimed title to the lands by virtue of tax deeds executed to him by the county clerk of Arkansas County on July 10, 1906, under a tax sale thereof made on July 8, 1904, for the nonpayment of taxes of the year 1903. The evidence showed that the two tracts are not contiguous, and that one of them contains forty acres, and is described as "the northeast quarter of the northeast quarter of section 27, township 3 south, range 6 west;" that for the year 1903 it was listed, not separately, but as a part of the north half of the northeast quarter of said section, and the land was assessed under this latter description as an entire tract, and the taxes extended thereon according to the assessment of the value of the entire tract of eighty acres. The collector accepted payment of the taxes of 1903 on the west half of said eighty-acre tract and returned the east half thereof, to-wit: the northeast quarter of the northeast quarter of said section, as delinquent for the remaining portion of the taxes charged against the entire eighty acres. For the purposes of taxation, the said eighty-acre tract could not be divided except for reassessment. The sale of a portion of said tract for the remainder of the taxes assessed against the entire tract was unauthorized, and the sale thereof was on that account void. Bonner v. Board of Directors, 77 Ark. 519, 92 S.W. 1124.
It appears that the tax sale of the other tract of land involved in this suit was made upon a day not authorized by law; and for this reason the sale thereof was void. Vernon v. Nelson, 33 Ark. 748; Boehm v. Porter, 54 Ark. 665, 17 S.W. 1; Allen v. Ozark Land Co., 55 Ark. 549, 18 S.W. 1042; Penrose v. Doherty, 70 Ark. 256, 67 S.W. 398; Ross v. Royal, 77 Ark. 324, 91 S.W. 178.
It is not claimed upon this appeal by counsel for the defendant that the tax sales under which he claims title to the land were valid, nor does he contend that the deeds obtained thereunder are effective. The sole defense urged by him here against a recovery by the plaintiff is that the plaintiff is barred by laches. The chancellor found that the plaintiff had not paid taxes upon the lands since 1888; that for the years from 1888 to 1898, inclusive, the taxes thereon were paid by Neugass and Bier, and for the years from 1899 to 1902 inclusive by P. C. Dooley, and for each year thereafter by the defendant; that there had been a great increase in the value of said lands since the plaintiff had acquired them from the State in 1882, and since said decree of confirmation of his tax title in 1890, and that by reason of his failure to pay the taxes thereon, and the enhancement of the value of said lands, the plaintiff was guilty of laches which barred him of a recovery. A decree was thereupon entered dismissing the plaintiff's action for the want of equity.
It appears from the evidence that the defendant obtained his tax deeds for the lands on July 10, 1906, and immediately went into possession of one of the tracts and made valuable improvements thereon, and this suit was instituted within two years from the time that defendant went into possession of said land. But the evidence conclusively shows that the defendant never paid the taxes on said tracts of land prior to his said tax purchase in 1904, and prior to that time did not claim any right or interest therein. The taxes were paid upon one of the tracts of land by the persons and for the years named in the chancellor's finding of facts, but there is no evidence tending to prove that any of these parties paying said taxes thereon prior to the tax purchase by defendant did so under any color of title or under any claim of right, interest or ownership in the land. As to the other tract of land involved in this suit, there is no evidence that taxes were paid thereon by any one prior to the purchase by defendant at said tax sale in 1904, and there is no evidence that this tract had enhanced in value since it was acquired by the plaintiff.
It is urged that the rights and claim of plaintiff to these two tracts...
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