Jones v. Pond & Decker Manufacturing Co.

• Decision Date: 28 May 1906
• Citation: 96 S.W. 756,79 Ark. 194
• Parties: JONES v. POND & DECKER MANUFACTURING COMPANY
• Court: Arkansas Supreme Court

96 S.W. 756

79 Ark. 194

JONES v. POND & DECKER MANUFACTURING COMPANY

Supreme Court of Arkansas

May 28, 1906

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; reversed.

STATEMENT BY THE COURT.

The complaint in this case was filed by appellants to review and vacate a decree of the Mississippi Chancery Court, rendered at the March term, 1900, against them, divesting their interest in all of section 14, T. 10 S., R. 8 west, except 2.57 acres, and quieting the title of appellees thereto.

Appellants except Nannie C. Jones, the widow, were children and heirs at law of B. F. Jones. At the time of the rendition of the decree sought by this suit to be vacated, appellants, except Nannie C. Jones, the widow, were minors. Appellee, in the fall of 1897, filed a complaint in the Mississippi Chancery Court against one B. F. Jones to quiet title to section 14 T. 10 S., R. 8 W., in Mississippi County, Arkansas.

Jones died, and his widow and children, appellants here, answered. They admitted that appellee had derived title from the State through the Arnold heirs, under whom appellee claimed by deed executed to it in 1897. But they claimed that this title had been divested out of appellee, and had been invested in them by a tax deed duly executed to B. F. Jones in 1882. They set up this deed, and also the two and seven years statutes of limitation. They also set up that their ancestor had paid taxes on the land since 1877, and that appellee was barred by laches.

The court found that the tax title under which appellants claimed was void, but found that appellants had been in adverse possession under their tax deed of 2.57 acres, and quieted the title of appellants to this, but divested their title to the residue of the section, and quieted the title of appellee to same. The court also rendered a decree in favor of appellants for $ 1,039.80 for taxes and improvements. The tax deed to B. F. Jones was for all of section 14, T. 10, R. 8. The proof showed that 2.57 acres was cleared by him, and had been in cultivation continuously for seven or eight years before suit was brought by appellee to quiet its title.

Appellants seek by their complaint in this case to review and vacate that decree as to all except the 2.57 acres, and to quiet their title to the whole of section 14, T. 10, R. 8, supra. In their complaint, after setting up their claim of title under the tax deed to B. F. Jones, and the death of Jones, and their relationship to him, as the widow and heirs, and after reciting, among other things, that appellee claims title under a decree of the chancery court of Mississippi County, rendered in March, 1900, in its favor against them, they allege the minority of appellants, the children of Jones, at the time of the rendition of the decree, and set up various grounds for annulling same, and among them the following: That said B. F. Jones paid all taxes on said land from the date of his purchase until the day of his death; that he took possession of said land in 1884, and continued in the actual, open, notorious, hostile and exclusive possession of the same until the day of his death; and after his death the plaintiffs continued said possession until the rendition of said decree in March, 1900; that as an incident, at the rendition of said decree the defendant refunded to the said Nannie C. Jones, as administratrix, the taxes paid by her and the said B. F. Jones on said land, which sum the plaintiff Nannie C. Jones now brings into court and tenders to defendant.

The prayer was that the decree be vacated, and for general relief.

Appellee denied all the material allegations of the complaint, and its denial of the paragraph of the complaint above set forth is as follows:

Defendant denies that said B. F. Jones, deceased, took possession of said land in the year 1884, or that he held actual, open, hostile, exclusive possession of the same up until the time of his death, or that plaintiffs held possession of the same up until his death, or that plaintiffs held possession of the same until the rendition of the decree mentioned in the complaint; but if the said B. F. Jones ever held actual, open, exclusive and continuous possession of any part of said land for any length of time, his possession covered only two and one-half acres, which were held by mistake, and under the belief that it was a part of a tract lying contiguous to the tracts in question, and defendant denies that plaintiffs' possession or the possession of their ancestor was ever intended to cover any portion of the land in controversy, and denies that said possession extended to the entire section.

This suit was begun January 8, 1903. Appellant Minnie Adkins (nee Jones) was born September 10, 1881. Appellant Minnie Jones was born March 17, 1884, and the other children were younger than she.

The tax deed under which B. F. Jones claimed was executed January 12, 1880. It conveyed section 14, T. 10, R. 8. The proof showed that as early as 1884 the timber on the land on the line between sections 13 and 14 was deadened, and in 1889 three and three-fourths acres were cleared, and put in cultivation in section 14 for B. F. Jones. This land joined other land owned by Jones. In 1887 three hundred acres were deadened by Jones, and thirty acres were put in cultivation in January, 1895. Jones paid taxes on the land, and used firewood from it continuously from the time he bought it until 1897. No one else was in the actual occupancy of the other land in section fourteen. The chancery court refused to vacate the decree, and dismissed appellants' complaint.

J. T. Coston, for appellants.

1. The decree sought to be vacated was void because the court had acquired no jurisdiction of B. F. Jones or his heirs.

The warning order was published November 26, 1897, and Jones died December 15, 1897--before the thirtieth day after the making of the order. Kirby's Digest, § 6058. The death of a defendant pending publication of notice renders it ineffectual. Alderson on Jud. Writ and Proc. 343; 26 Minn. 421. There was, therefore, nothing to revive against the heirs, and no attorney could enter their appearance and consent to a revivor against them. Kirby's Digest, §§ 6308, 6311; 61 Ark. 419; 39 Ark. 106; Ib. 237; 98 N.W. 701.

2. Aside from the question of jurisdiction, if the decree upon the merits was erroneous, and deprived the heirs of a substantial right, it was the duty of the court, upon application of the heirs within the time allowed by statute, to vacate the judgment. Kirby's Digest, § 4431, subdiv. 8; Ib. § 6248; 8 S.W. 916; 10 Bush, 61; 10 Ky. Law Rep. 317; 65 Pa. 779; 82 N.W. 439; 42 W.Va. 783; 49 Ark. 417; 70 Ark. 418; 15 Ky. 76; Cent. Digest, 27, col. 1387-8; 74 Am. Dec. 298.

3. The plea of res judicata is not applicable in this case. 64 S.W. 425. And the minors are not estopped by receipt of money by the administratrix for taxes, interest and improvements. 2 Pomeroy's Eq. Jur. § 815; 101 N.C. 206.

4. On the question of adverse possession, when Jones took possession of a part, with his tax deed on record, his possession extended to the limits of the grant. 74 S.W. 299; 71 S.W. 255; Ib. 945; 88 S.W. 977; 6 Col. 265; 25 Me. 472; 85 Am. Dec. 106; 130 F. 503; 10 Pet. 190; 48 Ark. 316; 2 Wood on Lim. 633; 88 S.W. 566. See also 142 U.S. 443 F. 180; 158 U.S. 384 The act of deadening the timber on a tract of land is an unequivocal assertion of ownership. 34 Ark. 602; 87 Ill. 146; 2 Wood on Lim. 676. To be adverse, possession need not be so open, continuous and notorious as necessarily to be seen and known by the owner if he should casually go upon the land. 111 Ala. 589; 43 Mo. 142.

5. Jones bought the land for taxes due and delinquent thereon for the years 1868 and 1876, inclusive, in the year 1877, and continued to pay the taxes thereon and improve the land until November 26, 1897, when this suit was brought.

"Equity will not permit one whose duty it is to act to wait and let the future determine whether or not the property is sufficiently valuable to assume burdens and rights otherwise discarded." See also 168 U.S. 284; 11 Pet. 333; 98 F. 773; 51 F. 495.

WOOD J. HILL, C. J.

OPINION

WOOD, J., (after stating the facts.)

This action was brought under section 6248 and 4431, subdivision 8, of Kirby's Digest.

This court has construed these provisions in Blanton v. Rose, 70 Ark. 415. According to that case, appellants except Mamie Adkins, the children of B. F. Jones, had the right to bring this suit. The decree which they seek to vacate divested their title in the lands, and was tantamount to ordering a conveyance from them in favor of appellee. They, except Mamie Adkins, were minors when the decree was rendered, and under the above section had a day in court within twelve months "after arriving at full age" to show cause against the decree, and to vacate same for errors therein. Section 4431, subdiv. 8, supra.

As to Mamie Adkins, she was over eighteen years of age when the decree sought to be vacated was rendered. The statutes (secs 4431, subdiv. 8, and 6248, Kirby's Digest, supra) preserve the right to appear and show cause why the judgment should be vacated to infants. Sec. 3756, Kirby's Digest, provides: "Males of the age of 21 years and females of the age of 18 years shall be considered of full age for all purposes, and until those ages are attained they shall be considered minors." Under this section, Mamie Adkins could have brought suit in her own name or defended a suit brought against her at the time the decree sought to be canceled was rendered. Under the law she was not...