Hendrix v. Black

• Decision Date: 18 February 1918
• Docket Number: 164
• Citation: 201 S.W. 283,132 Ark. 473
• Parties: HENDRIX v. BLACK
• Court: Arkansas Supreme Court

201 S.W. 283

132 Ark. 473

HENDRIX v. BLACK

No. 164

Supreme Court of Arkansas

February 18, 1918

Appeal from Ashley Chancery Court; Zachariah T. Wood, Chancellor affirmed.

Judgment affirmed.

U. J Cone, for appellant.

1. Appellant claimed and sold the timber in good faith under a tax deed. He had no notice of the confirmation of appellee's title, or that his tax deed was void.

No fraud is proven nor conspiracy to defraud shown. The claim for damages is not sustained by the evidence. 8 Cyc. 622, 647 C, 658, 691-2; 19 Ann. Cases, 1254 and note; 20 Ark. 224; 3 Enc. Ev. 434 and notes 88, 89, 90; 16 Ind. 512; 5 Ann. Cas 374; 50 Vt. 494; 11 Id. 615; 76 N.Y. 284; 47 Mich. 572; 15 N.Y.S. 528.

Williamson & Williamson, for appellee.

1. The decree and findings are correct as to the title. 94 Ark. 58; 98 Id. 266. Appellant's tax title was void and so declared by the court. He was a party and bound by the confirmation decree and can not impeach it collaterally. Kirby's Digest, § 4425 and note (e); 125 Ark. 301; 121 Id. 474.

2. He was liable for the trespass. 18 Tex. 228; 90 S.W. 860; 15 Ark. 452; 116 Id. 206; 38 Cyc. 1041 and notes; 43 Ark. 449; 129 N.C. 149; 39 S.E. 746; 22 Vt. 338; 78 Me. 260; 97 Ala. 627; 92 Ky. 574; 17 Minn. 200; 23 Mo. 434; 12 Wend (N. Y.) 39; 123 Penn. St. 62; 10 Am. St. 512.

3. The evidence is sufficient to sustain the findings. 95 Ark. 482; 1 Enc. Dig. Ark. Rep. 377-8.

4. Treble damages should have been allowed for the wilful trespass. Kirby's Digest, § 7976-8; 123 Penn. St. 62; 10 Am. St. 512; 96 Ark. 87; 116 Id. 206.

OPINION

WOOD, J.

Appellee instituted this suit against the appellant, alleging that during 1912 and until July 18, 1913, he was the owner in fee of a certain tract of land in Ashley County, Arkansas, on which last named date he sold the land in suit, together with other lands, to one Josiah Grace; that Hendrix had asserted some claim of title to the land, and that in January, 1913, the appellee had instituted suit for confirmation of title and had made Hendrix a party to the suit; that Hendrix, with full knowledge of appellee's title and knowing that he himself had no title to the lands, had entered into a conspiracy with one E. D. Edwards to defraud appellee; that in pursuance of such conspiracy Hendrix conveyed the land, or the timber thereon, to Edwards in order to enable Edwards to cut and remove the timber under pretense of being the owner thereof; that Edwards was insolvent and Hendrix well knew such to be the fact; that on the 28th day of May, 1913, appellee procured a decree of confirmation quieting title in him; that notwithstanding this fact, Edwards and his employees, at the instigation of Hendrix, cut and removed timber from the land to the value of $ 1,813.18; that after the land was denuded of its timber appellee's vendee, Grace, who had purchased the land, refused to keep the same and reconveyed the same to appellee.

Appellee alleged that he brought the suit in chancery court so that the fraud might be uncovered, and that the appellant Hendrix might be held to account to him for his fraudulent acts and schemes, and he prayed that a master be appointed to state an account as to the amount of timber cut through the fraudulent acts of Hendrix, and that he have a decree for his damages, and for all general and equitable relief. He prayed for treble damages.

Appellant answered separately, denying the title of the appellee and the alleged sale to Grace. He set up title in himself under the clerk's tax deed. He denied that he had been made a party to the confirmation suit of the appellee and denied the other allegations of the complaint as to conspiracy. Admitted that he had sold the timber to Edwards, and denied that Edwards was insolvent. He admitted that a confirmation decree had been rendered in the Ashley chancery court in favor of the appellee, but alleged that appellant was not a party to the suit for confirmation, and set up that same was void and a fraud upon the appellant.

Edwards answered, denying that there was any conspiracy between himself and Hendrix to remove the timber from the land. He denied appellee's title to the land. He set up that Hendrix owned the land in controversy under a clerk's tax deed, and that on August 14, 1913, Hendrix deeded all the timber on the land to him (Edwards), and alleged that under his deed from Hendrix he had a right to cut and remove the timber from the land. He set up that Black and Grace had entered into a conspiracy to defraud him (Edwards) out of his timber and to prevent his further cutting of any timber on the land; that Black and Grace, by connivance and fraud, had procured a confirmation decree, and that he relied upon Grace's representations to him (Edwards) that he had the right to cut and remove the timber, and that Grace, by making such false representations, had prevented him (Edwards) from cutting the timber, to the latter's damage in the sum of $ 500. Edwards asked that a master be appointed and for an accounting, and made Grace also a party defendant to his cross-complainant.

Grace answered the cross-complaint of Edwards, denying each and every material allegation thereof; alleged that he had no interest in the result of the suit, and prayed that the cross-complaint of Edwards be dismissed as against him, and for all proper relief.

The testimony in the record is exceedingly voluminous, and it could serve no useful purpose to set out and discuss it in detail. The facts, in brief, as we gather them from the record, are substantially as follows:

The land upon which the alleged trespass was committed is described as the southwest 1/4 of section 34, township 17 south, range 4 west. This land, in 1901, was sold for the taxes of 1900. This tax sale was void. The county clerk, on June 23, 1903, executed to one J. C. Norman a clerk's tax deed to the land. On May 20, 1908, in a suit pending in the Ashley chancery court in which J. C. Norman was a party, the tax deed of the clerk under which Norman set up a claim of title was by decree of the court held to be void, and the title was confirmed to be in those under whom the appellee claims. Notwithstanding his tax deed was declared to be void by the chancery court, J. C. Norman thereafter assigned his certificate of purchase to the appellant Hendrix, and on the 3rd day of June, 1912, the clerk of Ashley County issued to J. M. Hendrix, as assignee of J. C. Norman, another tax deed, based on the same tax sale which the chancery court had declared to be void. This is the title under which Hendrix claims. There is in the record a decree of the Ashley Chancery Court, entered May 23, 1913, in which J. M. Hendrix was made a party. Among other things, that decree recites that J. M. Hendrix took no title by virtue of his deed from Hogan Oliver, the clerk, "and the same is hereby canceled, set aside and held for naught as a cloud upon petitioner's title." The decree further recites that "the title of said petitioner Louis C. Black, in and to these lands (the tract above described) is now unimpeachable," and appellee's title was then for the second time duly quieted and confirmed.

Hendrix testified that he was never served with process in the confirmation suit, and denied that he had entered into a conspiracy with Edwards. He stated that in 1911 and 1912 Edwards did some work for him and he owed Edwards for the work in the sum of $ 160.00, and sold him the timber on the land mentioned, giving him a year in which to remove it, that being a fair value for the timber; did not know Black was claiming the land. Stated that he owned as much as 640 acres of land in two miles from the land in controversy, and had sold the timber to different parties by the thousand and by the acre, at a dollar per acre. He had owned many tracts over the country and never received over $ 2.00 per acre for timber except for some very thick pine north of Snyder. He had never been on the land before the present suit was instituted. He stated that he had paid the taxes on the land for the year 1912; that in October, 1912, he had sold the land to Charles Brown, of St. Louis. And on cross-examination he testified as follows: "I got tax deed under certificate issued to J. C. Norman and transferred to me, with other certificates aggregating about 440 acres. I have bought quite a number of tax titles in Ashley County and am...