McCann v. Smith

• Decision Date: 14 May 1898
• Citation: 45 S.W. 1057,65 Ark. 305
• Parties: MCCANN v. SMITH
• Court: Arkansas Supreme Court

45 S.W. 1057

65 Ark. 305

MCCANN v. SMITH

Supreme Court of Arkansas

May 14, 1898

Appeal from Lee Circuit Court HANCE N. HUTTON, Judge.

This is an action commenced on June 12, 1896, by appellee against appellant for possession of a tract of land in Lee county. The plaintiff had judgment below.

The complaint showed a perfect chain of title. Defendant claims title under a donation deed issued to him by the commissioner of state lands, dated February 20, 1896, upon a certificate of donation issued to him December 27, 1892, and proof of improvements, residence, etc. The state's ownership was based upon a foreclosure for taxes of 1883, 1884, and 1885. The forfeiture was conceded to be void by reason of the fact that the taxes for that year had been paid by appellee in apt time but the forfeiture and certificate of donation and deed executed to defendant were all regular upon their faces and on the record, and defendant has had actual and adverse possession continuously since his entry under his donation certificate--a period of more than four years up to the commencement of the suit. Defendant pleaded the two years statute of limitation, and also asked reimbursement for improvements in the sum of $ 529 made in good faith while in possession under his donation certificate.

The court held (1) that to sustain his plea of limitation defendant must show possession under his donation deed for a period of two years before commencement of the action--that the period of possession under the certificate of donation could not be coupled with the possession under the deed issued thereon, so as to make out the two years' period of limitation; and (2) that a claim for improvement under Sand. & H. Dig., § 2590, could not be sustained where the possession was held under a certificate of donation--that a certificate of donation was not "color of title" in the meaning of that statute. From the judgment of the court defendant has prosecuted this appeal.

Judgment reversed and cause remanded.

McCulloch & McCulloch, for appellant.

In order to sustain his plea of limitation, it is sufficient if defendant shows that he was holding under a donation deed from the state at the time of the institution of the suit and that plaintiff had been out of possession and seizin for two years next before commencement of the suit. Sand & H. Dig., § 4819; 57 Ark. 526. The same liberal construction should be given to this act as to other statutes of limitation. 53 Ark. 418; 57 Ark. 523; 58 Ark. 151; 60 Ark 163; ib. 499. The holder of land under a donation certificate from the state has sufficient "color of title" to entitle him to betterments. 60 Ark. 163; 48 Ark. 183. The certificate has as much force to give color of titlte as has a deed with words of grant.

Edwin Bevens, for appellee.

In all the cases cited by appellant the adverse possession was for two years or more, after the execution of the deed of donation. See, also, 59 Ark. 460; 43 id. 398; 53 id 423. The statute of limitations governing this case was passed before such a thing as a "donation certificate" existed in this state; hence the possession contemplated by it could not have been possession under a donation certificate. Act January 10, 1857. Possession under the donation deed is required. 140 U.S. 546. The act is to be strictly construed. 43 Ark. 398. The certificate of donation was not color of title under the "Betterment Act." Teid R. Prop. p 531, § 696; 3 Wash. Real Prop. 154; 47 Ark. 528.

OPINION

BATTLE, J.

Two questions are presented for our consideration and decision.

First. Is two years' adverse possession of a tract of land held by a donee, first under a certificate of donation, and then under a donation deed by the state, sufficient to bar an action against him, when the possession under the deed has not continued two years, and it is necessary to add it to that held under the certificate to make the two years' adverse possession?

Second. Is a donee, holding land under a donation deed executed to him by the state, entitled in an action against him by the owner for the possession of the same, to recover the value of the improvements made by him on the land after a certificate of donation was issued to him, and before the deed was executed, when the land was sold or forfeited to the state after the taxes for which it was sold or forfeited had been previously and in due time paid, and the owner recovers a judgment against him, in such action, for the possession of the same?

The statute, so far as it relates to this case, provides as follows: "No action for the recovery of any lands, or for the possession thereof, against any person or persons, their heirs or assigns, * * * who may hold such lands under a donation deed from the state, shall be maintained, unless it shall appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the lands in question within two years next before the commencement of such suit or action."

The possession necessary to bar the "plaintiff, his ancestor, predecessor, or grantor," must be held under the donation deed. Suppose a trespasser should hold adverse possession for two years, and the grantee in a donation deed for the land should oust him, and the original owner should bring an action against the grantee for the land before he has been in possession one year; the action would not be barred, although the plaintiff was not seized or possessed within two years next before the commencement of the action. So in this case the action is not barred. It is the adverse holding under the donation deed for two years that bars. Until the deed is executed, the grantee therein acquires no right, title or interest in the land, and acquires none by adverse possession. Sand. & H. Dig., § 4575, et seq.

2. Section 2595 of Sandels & Hill's Digest, so far as it relates to this action, provides as follows: "No person shall maintain an action for the recovery of any lands, or for the possession thereof, against any person....*....*....*....*....*who may hold such lands under a donation deed from the state, unless the person so claiming such lands shall, before the issuing of any writ, file in the office of the clerk of the court in which suit is brought an affidavit setting fort that such claimant hath tendered to the person holding such lands in the manner aforesaid, his agent or legal representative, the amount of taxes and costs first paid for said lands, with interest thereon from the date of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the value of all improvements made on such lands by the purchaser, his heirs, assigns or tenants, after the expiration of the period allowed for the redemption of lands sold for taxes, and that the same hath been refused."

Section 2597 of the same digest provides: "If judgment shall be given against any such person, or his assigns, who hold any such lands, in favor of any person...