Mason v. Gates

• Citation: 102 S.W. 190,82 Ark. 294
• Parties: MASON v. GATES
• Decision Date: 08 April 1907
• Court: Supreme Court of Arkansas

102 S.W. 190

82 Ark. 294

MASON v. GATES

Supreme Court of Arkansas

April 8, 1907

Appeal from Prairie Chancery Court; John M. Elliott, Chancellor reversed.

Decree reversed and remanded.

M. J Manning, for appellants.

1. The original survey and plat, and actual location according to the survey and the intention of the parties, must control. 8 Ballard, Real Prop. 619; 2 Id. 506; 6 Id 685; 7 Id. 617; 10 Id. 550; 110 Ia. 585; 15 Ark. 297; 9 Enc. of Law, 57, 59; 32 U.S. 554; Tiedeman, Real Prop. 828; 48 Ark. 498. No errors committed by the party preparing a plat for record, or in recording the same, will change the location of lots sold by the first survey or original plat. 115 Mo. 607; 3 Ballard, Real Prop. 575; 2 Id. 505. And the original map is admissible in evidence. 33 Ark. 119.

2. The complaint sets up no facts that would entitle the appellees to a decree divesting title out of parties holding possession under claim of title, and vesting it in appellees. Moreover their claim is based on tax titles only. The particular tracts of land or lots on which taxes are due are alone liable for the taxes charged to them, and no other tracts or lots can be sold therefor. 15 Ark. 40; 42 Ark. 343; 41 Ark. 149; 9 Ballard, Real Prop. 795. The interest of only the party in default may be sold. 18 Ark. 441. The object of describing in the advertisement the land to be sold being to inform the owner that it will be sold unless the taxes are paid, the test is, is the description sufficient to put the owner on notice? 50 Ark. 488; 50 Ark. 23.

A description according to an unrecorded map is sufficient for tax purposes and tax sales. 53 Ark. 114.

J. H. Harrod, for appellees.

OPINION

BATTLE, J.

There are two plats of block 43 in the town of De Valls Bluff, in this State. One has been recorded; the other has not. The unrecorded we shall call plat No. 1; the other, plat No. 2.

F. Gates and R. S. Moore brought this suit against John Malcolm and S. R. Mason in the Prairie Chancery Court. Gates alleged that, prior to September, 1891, he acquired a tax title to lots 25 and 26 in block 43 in De Valls Bluff, and at the September, 1891, term of the Prairie Circuit Court on the chancery side, he recovered a decree confirming his title to these lots, and has had actual possession of the same ever since then. That Jacob Frolich, after acquiring title through many conveyances to "lot 27, north of the town branch," and lot 28, in block 43, in De Valls Bluff, on the 27th of September, 1900, conveyed the same to R. S Moore. Lots 25, 26, 27 and 28 are so designated according to plat 2. Plaintiffs further alleged that there is an old printed plat of the town of De Valls Bluff (plat 1), which, according to the arrangement of block 43 and the numbering thereof, shows that lots 25, 26, 27 and 28 on plat 2 are lots 5, 6, 7 and 8. That John Malcolm obtained a deed from his co-defendant, S. R. Mason, to lot 5 on plat 1; that Mason acquired "some kind of a deed to lot 6, which undertook to convey it according to plat 1; and that the deeds of defendants are clouds upon the titles of plaintiffs.

Plaintiffs asked that such titles as the defendants acquired to lots 5 and 6 in block 43 be held to apply to lots 5 and 6 as designated on plat 2, instead of lots 5 and 6 in block 43 as shown by plat 1, and that 25, 26, 27 and 28, in block 43, as shown by plat 2, be declared the correct and proper description of said lots, and that their titles to the same be quieted as against the defendants.

The defendants answered and denied that plaintiffs have been in possession of the lots claimed by them. They alleged that there are two plats of block 43 in the town of De Valls Bluff; that there is an error in the making of plat 2; and that the lots were numbered one way in plat 1, and numbered around the other way in plat 2. That in the spring of 1866 R. C. Brinkley, Paul Goodloe, F. E. Whitfield, and J. J. Worsham, gave B. D. Williams a power of attorney, thereby authorizing and impowering him to lay off said land into town lots, and to sell, convey, or otherwise dispose of the same; and that Williams, acting under this authority, caused the land to be surveyed and laid off into town lots; and when the survey was completed, printed plats were made according to the survey, and were freely distributed and given away, and Williams, acting for the owners, sold the lots, or as many as he could, according to plat 1, and purchasers took and held possession accordingly. That afterwards, in order that plat 1 might be placed on the record, a copy was made, but the person making it made an error in dividing block 43, and numbering the lots as they appear in plat 1. He commenced at the northwest corner and numbered east around the block, instead of commencing at the northwest corner and numbering south around the block, as they were numbered on plat 1. That Brinkley, Goodloe and others, the owners of the land, divided into lots, sold lot 5 in block 43, according to plat 1, to W. A. Rives. On the 15th of May, 1876, it was forfeited to the State for taxes, and on the second day of May, 1883, the Commissioner of State Lands of the State of Arkansas sold and conveyed it to the defendant S. R. Mason, who sold and conveyed it, on the 14th day of January, 1901, to his co-defendant, John Malcolm. Mason also owns lot 6 in the same block. Lots 7 and 8 in block 43, as shown by plat 1, are the property of the estate of Captain Hanna, deceased, and J. R. Hanna, That all the sales of lots in block 43 by Brinkley, Goodloe and others, the original owners, were made according to plat 1, and the lots have been listed and assessed for taxation in accordance with plat 1, and for "thirty-five years no question has been raised to the location of said lots until after plaintiffs herein commenced their action to deprive others and take from them their property." Defendants further alleged that the following persons, William Cook, Patty C. Strong, George W. Nail, Jr., W. W. Hippolite, W. E. Maxwell, the town of De Valls Bluff, L. K. Armstrong, and the Bluff City Bank are the only persons claiming any of the lots in block 43, except the parties to this suit; and asked that their answer be taken as a cross complaint, and the parties named be made defendants and cited to appear; and that upon final hearing of this cause plat 2 be re-formed, amended, and corrected so as to show the numbering of lots in block 43 the same as they appear in plat 1, and that plaintiff's complaint be dismissed for want of equity.

The parties named in the cross complaint as the owners of lots in block 43 and Eugene Lankford, on his own motion, were made parties, and all answered, except Strong and the Bluff City Bank.

Plaintiffs, Gates and Moore, answered, and Gates, as to the allegation in the cross complaint as to the assessment of lots, said: "In so far as the entering of said lots and blocks upon the assessment books, he is not advised as to whether the officers are governed by the recorded plat (plat 2), but they are presumed to have discharged their duties in the premises, and, there being but one plat to govern them, it is presumed that the assessment books were made up with reference to the plat recorded (plat 2)." But as to such assessments his co-plaintiff, Moore, said nothing.

Kate A. Crawford, Orzilla Adams, James R. Walker, and W. T. Walker filed their petition for intervention herein, and alleged that they are the only heirs of G. W. Hanna and J. R. Hanna, both deceased, and that J. R. Hanna, in his lifetime, was the owner and in possession of lots 7 and 8 in block 43, as shown by plat 1.

William Cook alleged that he purchased and is the owner of lots 9 and 10 in block 43, according to plat 1. Ellen Nail alleged that she purchased from the plaintiff, F. Gates, and is the owner of lot 21, in block 43, according to plat 2; Warren Maxwell alleged that he purchased and is the owner of lots 17 and 18 in block 43 according to plat 1; the town of De Valls Bluff that it purchased and owns parts of lots 13 and 14 in block 43 according to plat 2; L. K. Armstrong that he purchased from F. Gates lots 7 and 8, in block 43, according to plat 2 F. Gates, in further response to cross-complaint, claimed lots 1, 2, 3, 4, and 10,...