Johnson v. Elder

• Decision Date: 21 June 1909
• Citation: 121 S.W. 1066,92 Ark. 30
• Parties: JOHNSON v. ELDER
• Court: Arkansas Supreme Court

121 S.W. 1066

92 Ark. 30

JOHNSON v. ELDER

Supreme Court of Arkansas

June 21, 1909

Appeal from Greene Chancery Court; Edward D. Robertson, Chancellor affirmed.

Decree affirmed.

Johnson & Burr, for appellants.

1. In ejectment or other real estate actions the plaintiff must recover on the strength of his own title, and not upon the weakness of his adversary's. 113 S.W. 340; 106 S.W. 1169 77 Ark. 246; Id. 338; Id. 477; 73 Ark. 199 102 S.W. 190. The burden of proving two years adverse possession is upon the appellee, and that proof must be clear and positive. 82 Ark. 51; 65 Ark. 422; 43 Ark. 486; 113 S.W 27; 34 Ark. 534; Id. 547; 48 Ark. 196; 1 Am. & Eng. Enc. of L., 2d Ed. 887; 1 Cur. Law, 55

2. Appellee, not having at any time had actual possession in his own person of the small tract cultivated by Byers, cannot establish the relation of landlord and tenant between himself and Byers by showing that the latter allowed him in 1907 to haul away two bushels of corn as rent for that year. There must have been two full years adverse possession, either actual or by tenant, and actual attornment by the tenant for two consecutive years in recognition of appellee's title. 18 Am. & Eng. Enc. of L., 2d Ed. 163; Kirby's Dig., § 5061; 60 Ark. 163.

3. As to the cultivated tract, the proof shows that Nutt had acquired title by 20 years possession, and Byers succeeded to his title by purchase. He is owner of this tract unless his title was divested by the forfeited land deed. But this deed and the tax sale are void. 65 Ark. 595. If Byers' attornment had been in good faith made to Elder, it was not sufficient to make him Elder's tenant. 66 Ark. 26; 80 Ark. 444; Id. 575; 4 Brewst. (Pa.) 361.

Huddleston & Taylor, for appellee.

1. One in actual possession of any portion of a tract of land under a deed which amounts to color of title will be held to be in actual possession of all the land described in the deed.

2. The relation of landlord and tenant existing between Elder and Byers for four years before this suit commenced, and three years before appellants bought their speculative title, is fully established by the proof. The relation having been once established, is continued by operation of law from year to year without any new contract. 61 Ark. 377; 24 Cyc. 1031F and note 24.

3. Although title to land has been acquired by adverse possession, it may, like any other title, be defeated by a subsequent adverse possession for the statutory period. 1 Cyc. 1121.

4. The affidavits of Sellmeyer and Weatherby, filed with appellee's petition for confirmation, are not competent evidence against appellee after the amendment of the petition. 16 Cyc. 976; 58 Ark. 490; 39 Cent. Dig., Pleadings, 84-86; 16 Cyc. 974; 89 Ark. 483.

5. In the Taylor case, 56 Ark. 595, the tax sale of 1892 was held to be void because the clerk failed to certify to the publication of the list, of lands and the notice of sale; but this irregularity was not sufficient to prevent the deed from being color of title. 71 Ark. 117. When appellee purchased the land and claimed it, and Byers rented from him, appellee's possession then began as a mere continuation of, and to the same extent as, the former Byers possession. The good or bad faith of the transaction is immaterial, provided the intention to take and hold adversely is shown. 77 Ark. 210; 80 Ark. 435. Taking the profits of which land is susceptible is possession. Pedis possessio is not necessary except where the estate to be acquired is personal to the one in actual possession. 35 Am. Dec. 760.

OPINION

FRAUENTHAL, J.

This action was originally instituted by the plaintiff, W. S Elder, by filing an ex parte petition on October 14, 1907, in the Greene Chancery Court seeking to confirm his title to the land involved in this suit, and which is described as the fractional northeast quarter of section 27, township 19 north, range 5 east, containing 142.08 acres in Greene County, Arkansas. His claim of title was founded upon a tax deed executed to him by the State of Arkansas on June 4, 1903, in which it is recited that the land was sold to the State for the nonpayment of the taxes of 1891.

The defendants, Johnson & Burr and A. H. Glasscock, filed an intervention in said suit, and were made parties thereto. They claimed title to the land by virtue of the grant of said land to the State of Arkansas as swamp lands by the United States under the act of Congress approved September 28, 1850; by a deed from the State of Arkansas to John B. Jones on March 18, 1879; and by mesne conveyances from Jones to defendants. In this original petition the plaintiff alleged that the land was wild and unoccupied, but subsequently he filed an answer to defendants' intervention and a cross-complaint against the defendants in which he stated that the allegation that the land was wild and unoccupied was made by mistake, and alleged that he was and had been in possession of the land for a number of years; and he asked in this cross-complaint to have his title to the land quited. He also filed a motion to have the above allegation as to the occupancy of said land stricken from the petition, and this was by the court granted. The defendants made answer to the cross-complaint of the plaintiff; and this cause thereupon became an action by plaintiff to quiet his title to said land.

The chancellor found that the plaintiff had acquired title to the land by adverse possession of the land for two years under said tax deed; and entered a decree quieting the title to the land in the plaintiff.

The evidence in the case was taken partly by depositions and partly by the agreed statement of facts. From this it appears that the tax sale of said lands for the year of 1891, and upon which is founded the tax deed executed by the State of Arkansas to plaintiff, is void for the reason that the county clerk failed to attach to the record of the list and notice of sale of delinquent lands for that year, the certificate required by section 5763 of Mansfield's Digest; and the sales of lands in said county for said year were held to be void by this court in the case of Taylor v. State, 65 Ark. 595, 47 S.W. 1055. But the plaintiff claims that he has had possession of the land under said tax deed for a period of more than two years next before the commencement of this action, and in this way claims title to the land. The muniments of title introduced by defendants indicate a chain of title from the United States to them. But it is unnecessary to inquire further into the alleged title of defendants because in a suit like this to quiet title the plaintiff must succeed upon the strength of his own title, and not upon the weakness of the title of his adversary. Lawrence v. Zimpleman, 37 Ark. 643; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 92 S.W. 534; Mason v. Gates, 82 Ark. 294, 102 S.W. 190; Little v. Williams, 88 Ark. 37, 113 S.W. 340; Sibly v. England, 90 Ark. 420, 119 S.W. 820. And, if the plaintiff has title to the land by reason of said tax sale and the possession thereunder, it would be superior to the alleged title of defendants.

The sole question, therefore, involved in this case is whether the plaintiff has had the possession of said land under said tax deed for such time as under the law will invest him with the title.

This tract of land is located within the meandered lines of what is known as Cache Lake according to the original survey of the United States Government. At the time of the purchase of the land by the plaintiff in 1903 from the State, a number of acres of the land was above the former marshy lands of the lake, and some acres of it were dry; but the greater part of it was covered with timber. About one and one-half acres of the land were cleared and in cultivation, and were located within an inclosure of another tract owned by one Don Byers. Byers and his grantors had supposed that this one and one-half acres of the land, which is in the shape of a triangle, was part of a different and distinct tract of land owned by them, and so had been inclosed with a fence in conjunction with their tract; and this triangle was then in the actual possession of Byers. In the fall of 1903 the plaintiff saw Byers, and laid claim to this part of the land and thereafter in 1904 had the same surveyed, and by the survey showed that this triangular portion was a part of the tract of land described in his tax deed. Byers and the plaintiff then entered into an agreement by which Byers should hold the possession of the triangular tract as the tenant of the plaintiff, and should attorn to the plaintiff as such tenant therefor. He then executed his note to the plaintiff for the rent of the land for the year of 1904 in the sum of five dollars. He agreed to thus become the tenant of the plaintiff and to recognize the title of the plaintiff to the Tract of land for the reason that he did not want any litigation over it. But he testified that he then held and for all the years since 1904 continued to hold the possession of this tract of land as the tenant of the plaintiff. Byers and his grantors of the land adjoining this tract had had possession of this tract for a number of years before 1903; but in 1903 Byers thus surrendered the possession to the adverse claim and demand of the plaintiff and in subordination to the rights of the plaintiff; and as the tenant of plaintiff he agreed to hold the possession of the lands for the plaintiff, and did so hold it up to the date of the commencement of this suit. The chancellor in effect made this finding of fact. And, while the evidence is not entirely satisfactory, nevertheless it is sufficient in our opinion to support that finding. Where the chancellor's finding is not clearly against the preponderance of the evidence,...