Honeycutt v. Sherrill

• Decision Date: 01 May 1944
• Docket Number: 4-7347
• Citation: 179 S.W.2d 693,207 Ark. 206
• Parties: Honeycutt v. Sherrill, Trustee
• Court: Arkansas Supreme Court

179 S.W.2d 693

207 Ark. 206

Honeycutt v. Sherrill, Trustee

No. 4-7347

Supreme Court of Arkansas

May 1, 1944

Appeal from Craighead Chancery Court, Western District; Francis Cherry, Chancellor.

Reversed.

Claude B. Brinton, for appellant.

Frierson & Frierson, Chas. D. Frierson, for appellee.

OPINION

Robins, Justice.

Appellant, who claims title to the land involved herein under a donation certificate and donation deed from the State of Arkansas, seeks to reverse the decree of the lower court, by which it was adjudged that appellee is the owner thereof, by virtue of a conveyance to him by the Cache River Drainage District.

This land is situated in the Cache River Drainage District. The assessments due thereon to said district for the years 1924, 1925, 1926 and 1927 not having been paid suit to foreclose same was instituted in the chancery court, the land was sold under decree of the court and deed therefor executed by the court's commissioner to the district on January 2, 1928.

The state and county taxes on the land were not paid for the year 1931, and it was forfeited and sold to the state in 1932. This forfeiture was duly certified on December 3, 1934.

Proceeding under the provisions of Act 119 of the General Assembly of Arkansas of 1935, approved March 19, 1935, the State of Arkansas brought a suit in chancery court to confirm its title. On November 7, 1936, the drainage district filed in the confirmation suit an intervention setting up that the land had been illegally assessed and that the forfeiture to the state was void. This intervention was sustained, the forfeiture to the state canceled and the title of the drainage district confirmed by decree dated May 9, 1939.

Appellant obtained donation certificate for this land from the State Land Commissioner on February 22, 1939, immediately entered into possession of the property and remained in open and notorious possession thereof thereafter and up until the filing of the instant suit. Appellant cleared 60 acres, built three small dwelling houses, three small barns, fenced 40 acres for pasture, put a pump at each house, built two smokehouses and built a chicken house for each dwelling. During each year of his occupancy he cultivated from eleven to fifteen acres in cotton, from fifteen to twenty acres in corn, and also raised some cane and soy bean hay.

Appellee instituted this suit (originally an ejectment suit to recover the land) against appellant in the circuit court on March 18, 1942. The case was transferred to chancery court on motion of appellant.

By § 8925 of Pope's Digest of the laws of Arkansas, it is provided: "No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or Commissioner of State Lands, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any act providing for the sale of lands forfeited to the State for the nonpayment of taxes, or who may hold such land under a donation deed from the State, or who shall have held two years actual adverse possession under a donation certificate from the State, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed of the lands in question within two years next before the commencement of such suit or action, and it is hereby intended that the operation of this act shall be retroactive."

In discussing the operation and effect of this statute Chief Justice Hill, in the case of Dickinson v. Hardie, 79 Ark. 364, 96 S.W. 355, said: "This is purely a statute of limitations, and runs against void sales, as well as voidable sales or regular sales. The statute is not in favor of those holding under valid deeds issued pursuant to valid tax forfeitures and valid sales, but is in favor of the possession for two years under deeds therein mentioned, . . . A statute of repose is not needed in favor of purchasers at valid tax sales. The validity of the sale and precedent proceedings effectually carries the title, and renders unnecessary such statutes, and they are enacted for the benefit of those acquiring these State titles and quieting these questions after two years possession under them. This whole matter was gone into fully and conclusively in the recent case of Ross v. Royal, 77 Ark. 324, 91 S.W. 178." Other cases in which the effect of this statute has been considered are: Carpenter v. Smith, 76 Ark. 447, 88 S.W. 976; Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390, 11 L. R. A., N. S. 772; Chavis v. Henry, 205 Ark. 163, 168 S.W.2d 610; Terry v. Drainage District No. 6, Miller County, 206 Ark. 940, 178 S.W.2d 857; Sims v. Petree, 206 Ark. 1023, 178 S.W.2d 1016.

The rule laid down in all of these cases is that this statute is a statute of limitation, and that actual, adverse possession under a tax deed from the State Land Commissioner (and, since the amendment by Act No. 7 of 1937, approved January 26, 1937, under a donation certificate) vests a good title in the occupying holder of the donation certificate or deed, regardless of any defect in the tax sale under which the state acquired title.

In the case at bar it is shown that appellant obtained a donation certificate for this land on February 22, 1939, immediately went into possession thereunder and occupied the land adversely for more than two years before the institution of the instant suit. The fact that the drainage district was the holder of the record title to the land did not change the effect of his occupancy, as we have held that the rights of an improvement district may be barred by adverse possession. Hart v. Sternberg, 205 Ark. 929, 171 S.W.2d 475.

It is argued on...