Kelley Trust Company v. Lundell Land & Lumber Company

• Court: Arkansas Supreme Court
• Writing for the Court: HART, J.
• Citation: Kelley Trust Company v. Lundell Land & Lumber Company, 251 S.W. 680, 159 Ark. 218 (Ark. 1923)
• Decision Date: 28 May 1923
• Docket Number: 11
• Parties: KELLEY TRUST COMPANY v. LUNDELL LAND & LUMBER COMPANY

251 S.W. 680

159 Ark. 218

KELLEY TRUST COMPANY v. LUNDELL LAND & LUMBER COMPANY

No. 11

Supreme Court of Arkansas

May 28, 1923

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor affirmed.

STATEMENT OF FACTS.

On the 14th day of April, 1920, the Kelley Trust Company brought suit against Lundell Land & Lumber Company to recover eighty acres of land in Phillips County, Ark. Both parties claim title to the land by mesne conveyances from purchasers at overdue tax sales. The plaintiff also claims title on account of having paid the taxes more than seven years in succession three of which were subsequent to the statute passed by the General Assembly on March 18, 1899, which is § 6943 of Crawford & Moses' Digest.

It appears from the record that the eighty acres of land in question was forfeited to the State for the nonpayment of taxes for the year 1876. On Sept. 30, 1882, this tract of land was included in a suit brought by the State of Arkansas under and by virtue of the overdue tax act of 1881.

A decree was rendered in the chancery court in said cause on the 27th day of November, 1882, which was a day of the November term of the chancery court of Phillips County, Ark. It was decreed that the forfeiture and sale of said land to the State of Arkansas was void, and that no title was vested in the State by virtue of said sale. It was further decreed that a commissioner be appointed for the purpose of selling certain lands, including the tract in controversy, for the nonpayment of the taxes charged against said lands. Said tract of land was duly struck off and sold to the State of Arkansas for want of a private bidder. The title to the land in controversy passed to the State in this overdue tax sale and remained in the State until the passage of act 176 approved April 14, 1893. This act donated the land in controversy to the Laconia Levee District for the purpose of building and maintaining levees in said district. Acts of 1893, p. 308.

On the 15th day of June, 1901, a final decree was rendered in the Phillips Chancery Court, in a suit brought by the Laconia Levee District to quiet and confirm the title to certain lands, including the land in controversy, and the title to the land in controversy was vested in the predecessors in title of the Lundell Land & Lumber Company.

On the 18th day of June, 1883, being a day of the May term, 1883, of the chancery court of Phillips County, Ark., what purports to be a decree nunc pro tunc was entered of record in the overdue tax suit above referred to, and the lands embraced in that suit, including the land in controversy, were again ordered sold by a commissioner appointed for that purpose. At the sale the land was duly purchased by the predecessors in title of the Kelley Trust Company.

It was stipulated that the land in question is wild and unimproved and is not in the actual possession of any one. The plaintiff and its predecessors in title paid the taxes on the land in question for more than seven years consecutively, and three of such payments were made subsequent to the passage of the act of March 18, 1899, which is § 6943 of Crawford & Moses' Digest.

The chancery court found the issues in favor of the defendant and a decree was entered accordingly. To reverse that decree the plaintiff has duly prosecuted this appeal.

Decree affirmed.

Ozero C. Brewer and John C. Sheffield, for appellant.

Title was acquired by appellant through the sale under the nunc pro tunc order. Said order was valid, no fraud being shown. Title by limitation; also by payment of taxes for 7 years under color of title. 1 Burris' Law Dictionary, Rawles, 527; § 6943, C. & M. Digest; 121 Ark. 33. Appellee is also estopped to claim title to the lands.

John I. Moore, Sr., J. G. Burke and John I. Moore, Jr., for appellee.

Appellee claims ownership of the lands through two chains of title, one of which is not controverted in appellant's brief, but only its claim through the sale in the overdue tax proceeding. The only question for determination is whether appellant or appellee and their predecessors in title acquired the lands by purchase under the overdue tax proceedings. Appellant claims the title passed under sale to West and Ark.-Miss. Timber Land Association, while appellee holds that the title passed under the original final decree rendered in said suit to the State of Arkansas. The order confirming the sale under the final decree is conclusive, and appellant and its grantors cannot question validity of the sale. 97 Ark. 76. The nunc pro tunc decree was void, and no title passed by sale thereunder. 51 Ark. 224; 129 Ark. 301; 143 Ark. 543. Final decree was rendered Nov. 27, 1882, and the nunc pro tunc order June 18, 1883. Court had no power to vacate a judgment after lapse of the term. 148 Ark. 325; 144 Ark. 301; 97 Ark. 314; 113 Ark. 237; 46 Ark. 552; 33 Ark. 105; 36 Ark. 513; 52 Ark. 316. The title rested under the first sale, and the attempted sale under the nunc pro tunc order was void. Appellant could not acquire title by limitation under 7 years statute of paying taxes under color of title; no taxes were due while lands held by State, and they were exempt from taxation while held by Laconia Levee District, and he did not pay the taxes for 7 years in succession, under provisions of § 6943, C. & M. Digest. 56 Ark. 276; 66 Ark. 539; 75 Ark. 146. Appellant cannot raise question of estoppel for first time here.

OPINION

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

The plaintiff and the defendant both claim title at a sale under a decree in the overdue tax proceeding. The defendant deraigns title under the original decree rendered at the November term, 1882, of the Phillips Chancery Court, and the plaintiff deraigns title under what purports to be a decree nunc pro tunc rendered in the overdue tax case at the May term, 1883.

It is well...