Jones v. Temple

• Decision Date: 06 November 1916
• Docket Number: 242
• Parties: JONES v. TEMPLE
• Court: Arkansas Supreme Court

189 S.W. 847

126 Ark. 86

JONES v. TEMPLE

No. 242

Supreme Court of Arkansas

November 6, 1916

Appeal from Bradley Chancery Court; Z. T. Wood, Chancellor affirmed.

Decree affirmed.

B. L Herring and Will G. Akers, for appellant.

1. Appellee can prevail only on the strength of her own title not on the weakness of the appellants. 89 Ark. 289; 90 Ark 420; 97 Ark. 368; 8 Michie's Enc. Dig., Ark. Rep., 403, § 6.

Where it can be gathered from the whole record that a sale of land of an estate pursuant to an order of the probate court had the approbation of the court, no formal order of approval was necessary. 72 Ark. 339, 342; 76 Ark. 146, 149.

2. Appellee's claim is stale. Even if the proceedings of the probate court evidencing the sale of the lands of the W. K. Duncan estate, were such that they could have been disregarded had a timely suit been brought, they should not now be open to such attacks, after the lapse of forty-five years.

While bare lapse of time is not of itself laches, yet acquiescence in the decrees and orders of courts of record for a great length of time is laches. 55 Ark. 86, 92; 210 Ill. 471, 102 Am. St. Rep. 180; 16 Cyc. 156, Sec. VIII; 44 Ark. 267, 270.

Appellant has title by adverse possession for two years, the statutory period.

D. A. Bradham, for appellee.

1. A judicial sale passes no title until it is confirmed, and confirmation will not be presumed, but must be shown. 47 Ark. 419; 45 Ark. 41; 54 Ark. 481; 111 Ark. 174-75; 62 Ark. 213. In this record there is no hint at a confirmation, but to the contrary the record shows affirmatively that there was no confirmation, hence, Ousler v. Robinson, 72 Ark. 339-342, relied on by appellant, does not apply.

2. No laches is shown. The lands involved here were forfeited to the State under void sales and so remained until part of the lands were conveyed to Ed. Jones in 1916, and part to appellant in 1909. They have paid taxes only for one or two years since then, whereas appellee and her grantors have paid most of the taxes thereon since the date of these sales. The only improvement placed upon the lands was a partly built log house, not completed for habitation until after this suit was brought. No enhancement in value of the lands is shown. The facts stated in Gibson v. Herriott, 55 Ark. 93, are not helpful to appellant's contention. See also 103 Ark. 251.

3. Appellant's claim of title under the two years' statute of limitation is contrary to the facts shown in evidence. The burden was on him to prove such adverse possession for the statutory period. 1 Cyc. 1143-A; 61 Ark. 464; 65 Ark. 422. See also 23 Ark. 735; 92 Ark. 323.

4. For all legal purposes a presumption of death arises from the continued and unexplained absence of a person from his home or place of residence without any intelligence from or concerning him for a period of seven years. 104 Am. St. Rep. 198, et seq., and note; 22 Ark. 90.

OPINION

HART, J.

Effie Temple instituted this action in the chancery court against J. F. Jones to cancel the tax titles to certain tracts of land held by him. The chancellor granted the relief as to three of the tracts and entered a decree cancelling the title of the defendant to these three tracts. Two of these tracts comprised forty acres each and the other one eighty acres. The defendant has appealed. No appeal was taken by the plaintiff and for that reason we need only consider the three tracts of land as to which relief was granted her. The material facts are as follows:

The lands involved in this appeal were conveyed by the United States to the State of Arkansas as swamp and overflowed lands and in 1859 the State conveyed one hundred and twenty (120) acres of the lands to W. K. Duncan and the remaining forty to Geo. J. Duncan, a brother of William K. Duncan. In 1911, G. W. Duncan and Florence F. Robertson, the sole heirs at law of William K. Duncan, who had died, conveyed the land to Effie Temple. William K. Duncan died intestate about the year 1861. Administration was had upon his estate and the record shows that the administrator of his estate was ordered to sell his lands. There are no records of the probate court confirming any sale made by the administrator; nor is there any order referring to any such sale. There was introduced, however, a recorded deed from the administrator to Robert S. Parker conveying to him all the lands remaining unsold of said estate, including by a specific description, one of the forty acre tracts involved in this suit. All three of the tracts involved in the suit were forfeited to the State of Arkansas for the taxes due for the years 1870, 1871, 1872 and 1873. They remained upon the books in the State Land Office as State lands under the above forfeitures until July 9, 1906, when they were sold by the State to Ed. Jones. They were conveyed by Ed Jones to J. F. Jones on June 7, 1911. The chancellor found that the forfeiture of the lands to the State for the non-payment of taxes was void and it is not claimed upon this appeal that the chancellor erred in so finding. Therefore it is not necessary to further consider this feature of the case. It is well settled that the plaintiff must recover, if at all, upon the strength of her own title. The defendant seeks to reverse the decree as to the one hundred and twenty (120) acres to which plaintiff deraigns title from William K. Duncan by adverse possession under his tax deed. Defendant claims that plaintiff had no title to the forty (40) acres owned by Geo. J. Duncan because it is not shown that he is dead, and that G. W. Duncan and Mrs. Florence F. Robertson were his heirs at law and had a right to convey the lands.

We will first consider the one hundred twenty (120) acres owned by William K. Duncan in his lifetime.

It is first contended by counsel for the defendant that the plaintiff acquired no title in these lands because the heirs at law of William K. Duncan had no interest therein. They insist that the title to these lands became invested in Robert S. Parker by the probate sale after the death of William K. Duncan. As we have already seen, the record shows that the probate court made an order for the administrator to sell the lands but there is nothing in the record or any order of the court confirming this sale. There was introduced, however, a deed from the administrator to Robert S. Parker, reciting that he had sold the lands pursuant to the order of the court and that Robert S. Parker was the highest bidder and the lands were knocked off to him.

It is insisted by counsel for the defendant that this amounted to a confirmation of the sale and they cite to sustain their contention the following cases: Ousler v Robinson, 72 Ark. 339, 80 S.W. 227; Cowling v. Nelson, 76 Ark. 146, 88 S.W. 913; Jacks v. Kelley Trust Co., 90 Ark. 548, 120 S.W. 142. We do not think either one of those cases sustains the contention of counsel. In the first mentioned case there was an order of the court showing that the Commissioner who made the sale appeared in court and acknowledged the deed set up by the defendant and that the court ordered a copy of the order of acknowledgment to be endorsed on the deed. The order further recites that a writ of possession should be issued on demand of the purchaser. Thus there was an affirmative showing by the record itself that the court approved the sale. So too in the second mentioned case there was an order of record reciting that the Commissioners produced to the court their deed to the purchaser for the land, described it and the order concluded, "which is in all things approved and confirmed by the court." The court said that while this related to the deed, it identified the prior transaction wherein the sale was ordered and must be treated as a confirmation of the sale. In the last mentioned case the deed to the purchaser had endorsed on it the words, "approved: M. T. Sanders, Judge of Phillips Circuit Court." The circuit court at that time exercised chancery jurisdiction and the court held that the endorsement was in effect an approval by the court. So it will be seen that in each of these cases there was an order of record or a formal notation on the deed itself signed by the judge showing that the sale had been made and the approval thereof. No such showing is attempted to be made in the present case. The recitals made in the deed that the land was sold pursuant to the orders of the court is no evidence whatever that the court approved the sale. The sale was not completed until confirmed by the court. The reason is that the court is the vendor and will confirm or reject the reported sale, or suspend its completion as the law and justice of the case may require. Miller v. Henry, 105 Ark. 261, 150 S.W. 700, and cases cited. This case is also authority that the state of record in the present case does not fairly admit of a construction...