Ingram v. Luther

• Decision Date: 04 March 1968
• Docket Number: No. 5--4331,5--4331
• Citation: 244 Ark. 260,424 S.W.2d 546
• Parties: Alvin J. INGRAM, Appellant, v. Troy LUTHER et al., Appellees.
• Court: Arkansas Supreme Court

Page 546

424 S.W.2d 546

244 Ark. 260

Alvin J. INGRAM, Appellant, v. Troy LUTHER et al., Appellees.

No. 5--4331.

Supreme Court of Arkansas.

March 4, 1968.

Howard Mayes, Paragould, and Wils Davis, Memphis, for appellant.

Rhine & Rhine, Paragould, for appellees.

JONES, Justice.

This appeal is from a decree of the Greene County Chancery Court setting aside a previous decree and confirming and quieting title to all that portion of Lots 4, 7 and 8 east of the St. Francis Levee in Section 32, Township 18 North, Range 8 East in Greene County, Arkansas. For convenience these lots will hereafter be referred to by number except where a fuller description is necessary.

The first decree in chancery case No. 8366 was entered on December 20, 1961, and confirmed title in the appellant who was the plaintiff in that case. The second decree in chancery case No. 8881 was entered on November 7, 1966. This second decree set aside the first decree and confirmed title in the appellees who were defendants in the first case and plaintiffs in the second case. The entire record of the trial in the first case was made a part of the record in the trial of the second case. On this appeal from the second decree, the appellant relies on the following points for reversal:

'1. The lower court should not have set aside, cancelled and held for naught the decree of the Greene County Chancery Court in Cause No. 8366 because the proof in this case is contrary to the Court's finding that no service of any kind was had on Troy Luther and Lula Mae Luther, his wife.

'2. The lower court should not have decreed that title to all that part of Lots 4, 7 and 8 lying East of the St. Francis Levee and Drainage ditch in Section 32, Township 18 North, Range 8 East, be quieted in Troy Luther and Lula Mae Luther, his wife, as against Alvin J. Ingram because such finding was contrary to law.

'3. Payment of taxes on land under color of title is deemed to be possession.

'4. Payment of taxes on unimproved land for a period of fifteen consecutive years creates presumption of color of title.

'5. Redemption of land from tax sale is not payment of taxes within the meaning of the law.'

The pertinent facts in the record before us are as follows: In 1940, a Mr. Barnes who owned all of Lots 4, 5, 6, 7 and 8, sold Lots 5 and 6 and all that part of Lots 4, 7 and 8 west of the St. Francis Levee to a Mr. Donaldson. In 1941, Barnes sold that portion of Lots 4, 7 and 8 east of the levee to a Mr. Austin, and in 1954, appellees purchased Lots 4, 7 and 8 east of the levee from the Austin heirs.

Donaldson sold Lots 4, 7 and 8 west of the levee to Hudson, who in turn sold to Kent who quitclaimed to W. T. Kitchen in 1951 under description as follows: 'Lots 8, 4, 5, 6 and 7 in accordance with recent survey and plat replatting lands south and east of re-established meander line and north and west of original levee, of Section 32, Township 18 North, Range 8 East.' In 1952, W. T. Kitchen transfered by quitclaim deed this property by this same description to Kitchen Farms Company. In 1958, Kitchen Farms Company transferred to Mrs. Effie C. Kitchen under description as follows:

'Lots Four (4), Five (5), Six (6), Seven (7) and Eight (8), according to plat of new survey of 1922, and in what would be section thirty-two (32) if the lines were extended.'

In 1959, Effie C. Kitchen sold to appellant, Alvin J. Ingram, under the following description: 'Lots 4, 5, 6, 7 and 8 of said Section 32, according to resurvey of 1922.'

In November 1959, the appellee, Troy Luther, executed an instrument in form of timber deed, but designated 'Bill of Sale,' conveying the timber on that portion of Lots 4, 7 and 8 east of the levee to one William Leach, and Leach proceeded to cut timber using a steel barge and other equipment in the process.

In May 1960, appellant Ingram filed a verified complaint in the Greene County Chancery Court against Troy Luther and William Leach alleging ownership in certain described lands in Greene County including

'All of Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9 according to plat of new survey of 1922, and in what would be, if the section lines were extended, Section 32.'

In deraigning title in his complaint, appellant recited an unbroken chain of deed conveyances from Barnes through Donaldson, Hudson, Kent, W. T. Kitchen, Kitchen Farms, and Effie C. Kitchen. The complaint then alleged that Leach had trespassed and cut timber from the lands described in the complaint under claim of timber deed from Luther, notwithstanding the fact that Leach had been advised that the land from which the timber was cut did not belong to Luther, 'and that Troy Luther only claimed that part of Lots 4, 7 and 8 east of the old St. Francis Levee.' (Emphasis supplied).

The complaint prayed a restraining order against Leach, a judgment against Leach for $3,750.00 and an order of attachment against barge and equipment belonging to Leach. The complaint then prayed that the court

'* * * enter a decree quieting title to said Lots 4, 5, 6, 7, and 8 in this plaintiff, divesting any right, title or interest in said lots out of the defendant Troy Luther and vesting the title thereto in this plaintiff.'

On June 9, 1960, amendment was filed to the complaint alleging payment of texes for more than fifteen years. On May 27, 1960, a warning order was filed by the chancery clerk warning the defendants to appear within thirty days and answer the complaint of the plaintiff, Alvin J. Ingram.

An attorney ad litem was appointed and publication of the warning order was completed on August 10, 1960, but proof of its publication was not filed until December 20, 1961. The attorney ad litem filed his report on August 10, 1960, setting out that on July 8, 1960, he wrote a letter to Bill Leach and 'copies of the same letter to Mr. Troy Luther, General Delivery, Marysville, California;' and that the copies to Luther were returned. The copy of the letter was filed with the report and the pertinent parts of the letter are as follows:

'Suit has been filed against you in Chancery Court here in Greene County, Arkansas, by the above named plaintiff, claiming title to certain lands in Greene County, Arkansas, and alleging that you have jointly cut timber on said lands and damaged the plaintiff to the extent of $3,750.00, and has attached a steel barge with all equipment thereon in Greene County. The proyer of the complaint is that title be quieted in the plaintiff to the lands described in the complaint for judgment against the two of you jointly in the amount of $3,750.00, and for injunction against you enjoining you from further trespassing upon the land.

'I am enclosing a copy of the temporary restraining order issued in this case. * * *' (Emphasis supplied.)

The restraining order did not mention Lots 4, 7 and 8, but only mentioned 'Fractional Section 32 lying south and east of the New St. Francis River Levee and Lots 1, 2, 3, 5, 6 and 9 according to the plat of New Survey of 1922, and which said lots would be in Section 32 if the section line were extended, all in Township 18 North, Range 9 East, Greene County, Arkansas.' (Emphasis supplied.)

On January 8, 1961, a warning order was issued warning Lula Mae Luther to appear within thirty days and answer the complaint. One month later, on February 8, 1961, Lula Mae Luther was made a party defendant, by amendment to the complaint, alleging that:

'* * * (T)he said Lula Mae Luther is the wife of Troy Luther and that the deed dated November 12, 1954, recorded in Record Book 126, page 61, of the records of Greene County, Arkansas, under which the said Troy Luther claimed title, was made jointly to the said Troy Luther and defendant Lula Mae Luther and, therefore, all of the allegations made in the original complaint against Troy Luther are equally applicable to the defendant Lula Mae Luther.' (Emphasis supplied.)

The amendment then alleged that Mr. and Mrs. Luther aided and abetted Leach in cutting timber from the lands described in the original complaint and prayed judgment against Mr. and Mrs. Luther for $1,000.00 and for attachment against '* * * all of Lots 4, 7, and 8 re-survey of Section 32, in Township 18 North, Range 8 East, Greene County, Arkansas, east of the Old St. Francis River Levee.'

The attorney ad litem mailed letters to Mrs. Luther c/o Emery Horner, Yuba City, California and c/o General Delivery Marysville, California (the same address he had used six months earlier for Mr. Luther). The letter mailed to Mrs. Luther imparts exactly the same information to her as the one written to Mr. Luther, including reference to enclosed copy of the temporary restraining order. The amendment to the complaint and the attachment on the land were not mentioned in the letter.

The letters mailed to the appellees were not received by them but were returned to the attorney ad litem. No answer was filed by the appellees and on December 20, 1961, hearing was had on appellant's complaint. The appellant offered proof to the effect that the land involved was wild and unimproved; that taxes had been paid by Kent, W. T. Kitchen, Kitchen Farms, and appellant, from 1950 through 1961, and the cnancellor entered a decree finding among other things,

'That the plaintiff, Alvin J. Ingram, is the owner of Lots 4, 5, 6, 7 and 8, Section 32, Township 18 North, Range 8 East, in Greene County, Arkansas; that said land is wild and unimproved; that the plaintiff and his grantors have held said land under color of title for more than seven (7) years and have continuously paid the taxes thereon during that time; that there is no adverse occupant of said land; that due notice of the filing of this action has been given as required by law; that Troy Luther and Lula Mae Luther, two of the above named defendants, are nonresidents of the State of Arkansas, and although having been duly served, as by law required, came not but made default.' (Emphasis supplied).

The chancellor then decreed:

'(T)hat the...