Grayling Lumber Company v. Tillar

• Decision Date: 04 February 1924
• Docket Number: 141
• Citation: 258 S.W. 132,162 Ark. 221
• Parties: GRAYLING LUMBER COMPANY v. TILLAR
• Court: Arkansas Supreme Court

258 S.W. 132

162 Ark. 221

GRAYLING LUMBER COMPANY v. TILLAR

No. 141

Supreme Court of Arkansas

February 4, 1924

Appeal from Desha Chancery Court; E. G. Hammock, Chancellor affirmed.

STATEMENT OF FACTS.

Appellees brought this suit in equity against appellants to quiet their title to certain lands in Desha County, Arkansas.

Appellants answered, setting up title in themselves and asking that the complaint of appellee be dismissed for want of equity, and by way of cross-complaint, asked that the title to the lands be quieted in appellants as against appellee.

The case was tried upon an agreed statement of facts. Appellees deraigned title from the United States. On August 3, 1858 the United States issued a patent to said lands to John D Kimball. On March 21, 1895, John D. Kimball and his wife conveyed said lands by deed to S. C. Roberson. On January 10 1900, S. C. Roberson and wife conveyed said lands to Frank Tillar. On the 31st day of August, 1900, T. F. Tillar received a clerk's tax-deed to said lands.T. F. Tillar and Frank Tillar was the same person.

Appellants deraigned title from the State of Arkansas. On the 10th day of September, 1894, the State of Arkansas conveyed said lands to the Red Fork Levee District. The Red Fork Levee District had the title to the lands confirmed in it by a decree of the chancery court, entered of record on November 7, 1901. The Red Fork Levee District then, by a deed, conveyed the lands either to appellants or to the grantors of appellants.

It is also agreed that the lands were forfeited to the State at a sale in 1869 for the taxes of 1868. The lands were advertised to be sold on October 18, 1869, and were actually sold and forfeited to the State for the nonpayment of taxes on October 28, 1869.

Other parts of the agreed statement of facts or reference to the assessment and sale of the lands will be referred to in the opinion.

At the time the Red Fork Levee District was created, in 1893, the lands in controversy were included within the boundaries of the district. From the year 1869 to 1894, inclusive, the record does not show the extension or collection of taxes against the lands. For the years 1895 and 1901, inclusive, the taxes were extended and paid by T. F. Tillar. From the year 1902 to the date of the agreed statement of facts, which was the 16th day of October, 1922, the taxes were paid both by appellants and appellees and those under whom they respectively hold title. Some years the appellees and other years the appellants first paid the taxes.

The chancellor made a specific finding of law and fact in favor of appellees, and the title to said lands was quieted in them as against appellants, and all the tax deeds under which appellants claim title are canceled and held for naught.

The case is here on appeal.

Decree affirmed.

E. E. Hopson, for appellant.

The Legislature of 1893, by act 176, authorized the land in question to be conveyed to the levee district, confirmed title, and exempted the land from taxes for five years. An additional period of exemption for five years was authorized by the Legislature of 1899. Act of 1901 confirmed title in levee district and pointed out the procedure The conveyance made by the State to the levee district was prima facie evidence of title. 82 Ark. 31; 89 Ark. 296; 98 Ark. 367; 87 Ark. 185. In view of the acts of 1893 and 1899 exempting the land from taxation, there could have been no forfeiture during the prescribed period, and the clerk's deed to appellees could avail nothing. 128 Ark. 550; 159 Ark. 218. Appellees are bound by the confirmation decree of Nov. 7, 1901. 62 Ark. 421; 42 Ark. 330.

Williamson & Williamson, for appellee.

Appellees hold the original title which left the United States Government in 1858. Being the true owners, possession has always been in appellees, and appellant has never had any kind of possession. 57 Ark. 523; 74 Ark. 383; 75 Ark. 194; 81 Ark. 258; 102 Ark. 59. The purported sale of the land to the State for taxes of 1868 was void. 50 Ark. 390; 54 Ark. 665; 74 Ark. 383; and the State had no title to convey. Therefore the act of 1893 did not apply to this land. Appellee's tax title is valid, and the attempt to exempt this land from taxation was ineffective. Upon securing deed to this land the levee board recognized that no title was passed, and disclaimed title, and had taxes extended against the land for 1895, resulting in the sale under which appellees hold. There is a legal presumption, at least, that this occurred. 135 Ark. 353; 147 Ark. 247. Until there is an interference with possession, payment of taxes by another is not sufficient of itself to call for action. 70 Ark. 256. Lapse of time will not cure defects in an invalid tax title. 50 Ark. 390. The holder of a void tax deed, not in actual possession, has no such constructive possession as will cause the statute of limitation to run in his favor. 60 Ark. 163. Appellee had no notice of the adverse claim of appellant. 69 Ark. 95; 76 Ark. 525; 99 Ark. 446; 103 Ark. 425.

OPINION

HART, J., (after stating the facts).

As will be seen by reference to our statement of facts, the United States issued a patent to said lands to John D. Kimball on August 3, 1858. John D. Kimball and wife conveyed the lands by deed to S. C. Roberson on March 21, 1895. S. C. Roberson and wife conveyed the lands by deed to Frank Tillar on January 10, 1900.

On the part of appellants it is claimed that the lands were forfeited to the State at a tax sale in 1869 for the nonpayment of the taxes of 1868.

Without going into a particular Statement of the facts, it appears that there was no legal assessment, advertisement or sale of the lands for taxes for the year 1868. This court has frequently held that the forfeiture to the State for the nonpayment of taxes for the year 1868 was void and passed no title.

The facts in similar eases are stated with more particularity and the reasons for holding such tax sales void are given in detail in Parr v. Matthews, 50 Ark. 390, 8 S.W. 22, and Boehm v. Porter, 54 Ark. 665, 17 S.W. 1. To the same effect see St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, 86 S.W. 852, and Herget v. McLeod, 102 Ark. 59, 143 S.W. 103. ...