Inman v. Quirey

• Decision Date: 23 April 1917
• Docket Number: (No. 331.)
• Citation: 194 S.W. 858
• Parties: INMAN et al. v. QUIREY et al.
• Court: Arkansas Supreme Court

194 S.W. 858

INMAN et al. v. QUIREY et al.

(No. 331.)

Supreme Court of Arkansas.

April 23, 1917.

Dissenting Opinion, May 22, 1917.

Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor.

Action by Sarah E. Quirey and others against John E. Inman and others. From a decree for plaintiffs, defendant named appeals. Affirmed.

On November 9, 1914, appellees instituted this action in the chancery court against appellants to recover an undivided four-fifths interest to 160 acres of land in Lawrence county, Ark., and for an accounting of the rents and profits therefrom. J. E. Inman, one of the appellants, filed an answer in which he claimed title to the whole of said land by purchase and by adverse possession under a tax title. He also pleaded that appellees were barred of relief by laches.

The material facts are as follows: Squire Holman originally owned the land and lived on it with his wife and their minor children. He died in 1888, leaving surviving him, as his widow, Mrs. M. E. Holman, and ten children as his heirs at law. Six of these children were borne him by Lizzie Holman, his first wife, who died while he lived in Kentucky. Holman married again in Kentucky, and the remaining four children were born of his last marriage. Holman came to Arkansas about three years before his death with his wife and part of his children, and a part of them remained in Kentucky, where they still reside. When he came to Arkansas, he established his homestead on the 160 acres in controversy, and lived there until the time of his death. After his death his widow continued to occupy the homestead with some of her children. She permitted the land to be sold for taxes, but it was redeemed from the tax sale, and she continued to reside on it thereafter with her son, Gus Holman. On the 11th of June, 1906, the land was again sold for taxes and the appellant J. E. Inman became the purchaser. On June 19, 1908, a clerk's tax deed was executed to Inman to the whole 160 acres. It is conceded that the tax sale was void. On April 10, 1910, Inman and wife conveyed to Mrs. M. E. Jones 80 acres of the land, and the consideration recited in the deed was $200. On April 6, 1910, Inman and wife conveyed 80 acres of the land to Gus Holman, and the consideration recited in the deed was $200. On April 13, 1912, Mrs. M. E. Jones conveyed to J. E. Inman the 80 acres which he had conveyed to her, and the consideration recited in the deed was $450. On the same day Gus Holman reconveyed to Inman the 80 acres which had been conveyed to him by Inman, and the consideration recited in the deed was $800. Mrs. M. E. Jones and her son Gus Holman continued in possession of the land until after they reconveyed it to Inman on April 13, 1912.

At the time of the institution of this action some of the children of Squire Holman had died intestate and left surviving children of their own, all of whom are made parties to the action. Inman purchased the interest of some of these, so that at the time the decree in this case was entered of record he owned by purchase an undivided one-fifth interest in the property, and appellees owned four-fifths interest in it.

The chancellor found that the sale by Inman to Mrs. M. E. Jones and Gus Holman amounted to a redemption of the lands from the tax sale, and operated as a payment of the taxes, and that Inman's plea of adverse possession for two years under the tax title was not available to him as a defense to this action, and that he had not held the lands adversely for a sufficient period of time to acquire title by virtue of the seven-year statute of limitation. Appellees were decreed to be the owners of an undivided four-fifths interest in the lands, and appellant Inman was decreed to be the owner of an undivided one-fifth interest therein, and also to be the owner of the undersigned power of Mrs. M. E. Jones who had married a man named Jones a few years after her former husband, Squire Holman, had died. After this decree had been entered of record, Inman found out that the heirs of Squire Holman had executed a deed to Basil Baker and Horace Sloan to a one-half interest in their undivided interest in the lands. Baker and Sloan were then asked to be made parties to the suit, and the court granted their request. The court then found that the deeds executed to Baker and Sloan were not intended to take effect until the final determination of the lawsuit, and that in the absence of said deeds, appellees had a right to bring proceedings to recover their interest in the premises. There was also a final decree in which Inman was charged with the rents received by him and allowed the improvements made by him. Inman has duly prosecuted an appeal to this court.

W. A. Cunningham, O. C. Blackford, G. M. Gibson, and W. P. Smith, all of Walnut Ridge, for appellant. Baker & Sloan, of Jonesboro, for appellees.

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

Squire Holman owned the lands in controversy as his homestead at the time of his death. About two years after his death, his widow, Mrs. M. E. Holman, married a man named Jones. She still continued to reside upon the land with some of her children. At the time the lands were sold for taxes on June 11, 1906, for the taxes of 1905, Mrs. M. E. Jones resided on the land with her son, Gus Holman. She had a life estate in the lands by virtue of her homestead interest. She had the exclusive right to the possession of the lands, and it was her duty to pay the taxes thereon. In Rodman v. Sanders, 44 Ark. 504, it was held that one who is in possession and receiving the rents and profits of land cannot acquire a title to it by a purchase for taxes, and that such acts only operate as a payment of the taxes.

In Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594, 29 Am. St. Rep. 28, it was held that a tenant in common of land can acquire no title to the interest of his cotenants by purchase at a sale of the whole for delinquent taxes, and that his purchase amounts to no more than the payment of the taxes and gives him no right except to demand contribution from his cotenants. Many cases to the same effect are cited in a case note in 8 Ann. Cas. at page 988. Various reasons have been assigned for the rule, and the one most frequently given is based upon a community of interest in a common title creating such a relation of trust and confidence between the parties that it would be inequitable to permit one of them to do anything to the prejudice of the other in reference to the property so situated. Judge Cooley says that a purchase made by one whose duty it was to pay the taxes shall operate as payment only, and that he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. Cooley on Taxation (3d Ed.) vol. 2, p. 965. This rule applies with especial force to Mrs. M. E. Jones because she had a life estate in the lands, was entitled to the exclusive possession of them, and it was her duty to pay the taxes. If she had purchased, or procured any one to purchase for her, the lands at a sale thereof on account of the nonpayment of taxes, her purchase would be void and operate as a payment of the taxes. Swan v. Rainey, 59 Ark. 364, 27 S. W. 240; Rowland v. Wadly, 71 Ark. 273, 72 S. W. 994. The rule is founded on public policy, and is designed not only to protect the interest of the parties represented, but as a guard against temptation on the part of the representatives.

For the same reason it is said that a cotenant cannot add to or strengthen his title by purchasing the title to the entire property from a stranger who has purchased the premises at a tax sale, as the law will not allow that to be done indirectly which cannot legally be accomplished directly. See case notes to 8 Ann. Cas. at 989, and 116 Am. St. Rep. 367, and 75 Am. St. Rep. 239; Phillips v. Wilmarth, 98 Iowa, 32, 66 N. W. 1053, and Dubois v. Campau, 24 Mich. 360. Inman purchased the land at the tax sale and received the clerk's tax deed therefor in April, 1908. He conveyed a part of the land back to Mrs. Jones on April 10, 1910, and a part of it to Gus Holman on April 6, 1910. During all this time Mrs. Jones and Gus Holman had been in possession of the land. The reconveyance to them operated as a payment of the taxes. On April 13, 1912, Mrs. Jones and Gus Holman reconveyed the lands to Inman, and he went in possession of them. This suit was not brought until November 9, 1914; hence it is insisted that Inman acquired a title by adverse possession under the tax deed which was executed to him on June 19, 1908, although it is conceded that the sale for taxes was void. It is contended that this tax deed, notwithstanding the tax sale was void and the conveyance from Inman to Mrs. Jones and Gus Holman in 1910 operated as a payment of taxes, remained as color of title and entitled him to the benefit of section 5061 of Kirby's Digest in regard to the time in which suits may be brought against the purchaser at a tax sale. They rely upon the cases of Brandon v. Parker, 124 Ark. 379, 187 S. W. 312, and Moore v. Morris, 118 Ark. 516, 177 S. W. 6. In the case of Moore v. Morris the title to the land was wrested from the holders of the record title by adverse possession for seven years. The court held that notwithstanding this fact, the record title continued in existence and remained as color of title so that the holder of the record title could reacquire title to the lands by payment of taxes for seven years under section 5057 of Kirby's Digest, the lands being wild and unoccupied lands. This rule was extended in Brandon v. Parker. There a person held lands under a donation deed and another person entered in possession of them within two years and acquired title by adverse possession. It was held that the donation deed of the first owner, although the lands were forfeited to the state under a void tax sale, remained as color of title so that the holder of it could acquire title by adverse...