Maney v. Burke

• Decision Date: 25 October 1909
• Citation: 122 S.W. 111
• Parties: MANEY v. BURKE.
• Court: Arkansas Supreme Court

122 S.W. 111

MANEY v. BURKE.

Supreme Court of Arkansas.

October 25, 1909.

Appeal from Circuit Court, Phillips County; Hance N. Hutton, Judge.

Action by R. C. Burke against Luke Maney. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

R. W. Nichols and W. G. Dinning, for appellant. Bevens & Mundt and J. H. Stevenson, for appellee.

HART, J.

Luke Maney is in possession of a certain tract of land in Phillips county, Ark., under a deed from the State Land Commissioner for the nonpayment of taxes. His deed is dated October 14, 1899. He has been in possession of the land since his deed was executed, and has cleared a part of it, and placed valuable improvements on it. R. C. Burke brought suit in ejectment against him in the Phillips circuit court to recover the land. The suit was commenced October 3, 1901. The statement of facts is as follows: In 1889 the Cotton Belt levee district instituted suit in the Phillips chancery court against the Jacks Real Estate Company for the purpose of enforcing its lien for unpaid levee taxes and obtained judgment against it upon personal service for the amount of the unpaid levee taxes. In default of the payment thereof the commissioner of the chancery court was directed to sell, among other lands, the undivided ½ of the S. W. ¼ of section 29, township 3 S., range 4 E., in Phillips county, Ark., for the purpose of satisfying said indebtedness. Pursuant to the directions of said decree the lands were sold, and H. H. Cage became the purchaser. The sale was duly reported and confirmed by the court at its November term, 1889. On July 10, 1897, Cage conveyed the lands to R. C. Burke. The record shows that the undivided ½ of said section 29 was sold to the state of Arkansas on January 29, 1883, under a decree of the Phillips chancery court in what is generally known as the "overdue tax proceedings." The record also shows that the undivided ½ of said section 29 was sold at delinquent tax sale on April 14, 1884, to the state for the nonpayment of the taxes for 1883. The record also shows that on the 14th day of October, 1899, the Commissioner of State Lands executed a deed to Luke Maney to lands described as follows:

                Parts of section       Section       Township         Range       Acres     Years
                                                                                          forfeited
                Und. ½ S.W. ¼        29             3 S.           4 E.         80      1883
                Und. ½ S.W. ¼        29             3 S.           4 E.         80     Sold to
                State at overdue tax sale January 29th, '83
                

The tax records for 1883 show that the whole of the S. W. ¼ of said section 29 was assessed in the name of Jacks & Co., and that in the margin, where is usually marked "Paid," was marked "Und. ½." The tax books for 1886 show an undivided one-half paid on by Jacks & Co., and one-half undivided left to the state. It is the same for the years 1887-88-89 and 90, except it was paid on by the Jacks Real Estate Company. The court instructed the jury that the title to the lands in controversy was in the plaintiff, Burke, and directed a verdict for him for the recovery of the land, which was accordingly done. The case is here on appeal, and counsel for Maney predicates error upon the action of the court in giving a peremptory instruction in favor of Burke.

The deed of the Commissioner of State Lands conveyed the whole of the S. W. ¼ of section 29 to Maney. The description as given in the deed is copied in the statement of facts. It shows that an undivided ½ of the S. W. ¼ of said section 29 was sold to the state at overdue tax sale on January 29, 1883, and an undivided ½ of the S. W. ¼ of said section 29 was forfeited to the...