FRAUENTHAL, J.
Appellants originally instituted this suit on January 30, 1905, to quiet their title to certain lands, and in the lower court a final decree was rendered dismissing their complaint for the want of equity, and from that decree they prosecuted an appeal to this court, and said cause on appeal was decided by this court on February 25, 1907, and the opinion thereof is reported under the style of Gaither v. Gage, 82 Ark. 51, 100 S. W. 80. The decree was by this court reversed, and the cause remanded, with directions to permit either party to amend his pleadings and take further proof, and for further proceedings not inconsistent with that opinion. Upon this second appeal the only land involved in the suit is the 40-acre tract claimed by the appellee Robert Campbell. He asserts title to that tract of land under mesne conveyances from parties back to one who had obtained deed to the land in 1895 from the commissioner of the chancery court who made sale thereof under a decree of that court, and he alleges that he and those under whom he claims title had been in actual, adverse, and notorious possession of said land continuously for more than seven years next before the commencement of this suit, and he also alleges that he and his grantors had paid the taxes on said land continuously for more than seven years, three payments having been made since March 18, 1899, and pleads the seven-year statute of limitation by payment of taxes for that period upon uninclosed and unimproved lands, under the act of March 18, 1899.
Upon the second trial in the lower court of this cause, the proof or evidence was made by the agreed stipulation of the parties, which is as follows: "(1) That the late W. A. King was the holder of the original title to the land involved in this suit, and that Mary J. King was the wife of W. A. King, and is now his widow, and that J. H. King, W. H. King, and Marian Gaither are the children and sole heirs at law of said W. A. King, and that W. A. King died in June, 1892. (2) That Marian Gaither married James B. Gaither December 20, 1887, and she is now, and has been continously since said marriage, the wife of said James B. Gaither. (3) That on the 26th day of March, 1891, the land in controversy, to wit, N. E. ¼ S. E. ¼ section 20, township 12 N., range 10 E., 40 acres, was mortgaged by one Felix R. Lanier, to the Real Estate Mortgage Company, incorporated, of the state of Maine. That suit was brought to the chancery court of the county of Mississippi, Ark., to foreclose said mortgage, a decree of foreclosure rendered and entered of record at the May, 1894, term of said court, ordering said land, among other lands, sold by H. D. Tomlinson, as commissioner of the court. That pursuant to said decree the said Tomlinson, commissioner, sold said land to the Union Mortgage, Banking & Trust Company, to whom a commissioner's deed was executed and delivered December 6, 1895, which sale and deed was confirmed at the December, 1895, term of said court. That a deed was executed and delivered to Mary E. Hale for said land by the said Union Mortgage, Banking & Trust Company of date March 3, 1898. That on the 26th of January, 1892, the said Mary E. Hale executed and delivered to C. C. Ermin a deed for said land. And that on the 2d day of December, 1902, the said C. C. Ermin executed and delivered a deed to the defendant and cross-complainant, Robert Campbell, for said land. That there is nothing of record to show that the said Felix R. Lanier ever had any title to said land, and that neither the petitioners nor their ancestors, nor his nor their privies, were made, or became, parties to the foreclosure proceedings under which said land was sold by the said H. D. Tomlinson, commissioner, to the said Union Mortgage, Banking & Trust
Company. (4) That under a verbal agreement of sale with said Union Mortgage, Banking & Trust Company the said Mary E. Hale went upon said land in August, 1897, built a house upon it, and had fenced in about one acre of the land when she obtained her deed in March, 1898, from said Union Mortgage, Banking & Trust Company, and that she and her grantees have been in the actual, adverse, notorious, uninterrupted, and exclusive occupancy and possession of said land from the date of said deed up to the present time. (5) That prior to the entry of said Mary E. Hale upon said land in August, 1897, all of said land was and always had been unimproved and uninclosed land, in a wild state, and in the occupancy of no one, and that said Robert Campbell, and those under whom he claims, have regularly kept paid up all taxes, state, county, and levee, assessed against and levied upon said land for each and every year from and including the year 1891, down to the present time, and that during this period petitioners have paid no taxes upon said land."
The appellee first bases his plea of the statute of limitations upon the ground that he and his grantors have been in the actual, adverse, and open possession of the land continuously for seven years next before the institution of this suit. This suit was instituted on January 30, 1905. The above evidence shows: That prior to August, 1897, the land was in a wild state and in the occupancy of no one; that in August, 1897, Mary E. Hale under a verbal agreement of sale, built a house upon it and fenced in about one acre of the land, which was the extent of her actual possession; and that she did not obtain a deed for the land until in March, 1898. So that when she took...
