Osceola Land Company v. Henderson

• Decision Date: 21 January 1907
• Citation: Osceola Land Company v. Henderson, 81 Ark. 432, 100 S.W. 896 (Ark. 1907)
• Parties: OSCEOLA LAND COMPANY v. HENDERSON
• Court: Arkansas Supreme Court

100 S.W. 896

81 Ark. 432

OSCEOLA LAND COMPANY v. HENDERSON

Supreme Court of Arkansas

January 21, 1907

Appeal from Mississippi Chancery Court; Edward D. Robertson Chancellor; affirmed.

Judgment affirmed.

Chas T. Coleman and J. T. Coston, for appellant.

1. The tax sale of 1893 was invalid.

2. Compare Arkansas and Illinois statutes on seven-year payment of taxes. Kirby's Digest, § 5057. 1 Wall. 638. The Illinois statute being the earliest enactment, the courts of that State have established the precedents for the construction of such legislation. Without exception such statutes are strictly construed, and it is held, (1) that a purchase at a tax sale, or a redemption, will not be treated as a payment, and (2) that the payment must be made by, and in the name of, the holder of color of title. 53 P. 426; 47 Ill. 21. If it be conceded that, instead of buying the land Driver actually paid the taxes, such payment by him, he having no color of title, could not inure to the benefit of Henderson, who did have color of title. 26 Ill. 525; 109 Ill. 101; 23 Ill. 392; Id. 512; 26 Ill. 521; 129 Ill. 30; 20 Ill. 403; 19 Ill. 385; 107 Ill. 403; 183 Ill. 548; 133 Ill. 313; 47 Ill. 480; 30 Ill. 327; 46 Ill. 521; 45 Ill. 391; 87 Ill. 259.

3. The record affirmatively shows that the seven payments were not made by defendants and those under whom they claim. Being a record required by law to be kept by the clerk and the evidence of what was done at a tax sale, it could not be contradicted by parol testimony. 61 Ark. 42. If the record can not thus be contradicted, the court can not consistently permit a payment to be proved, in the face of a record which shows that there was no payment, but a sale; especially where the effect of such testimony is to take the title from the plaintiff and vest it in the defendant. 21 Ill. 462; 88 S.W. 567.

G. W. Thomason, J. D. Block and W. J. Driver, for appellees.

1. In this case the plaintiff must proceed upon the strength of its own title, and not the weakness of the defendants'. 37 Ark. 46-83; 75 Ark. 312. A fatal defect exists in appellant's muniments of title, in this: the decree mentioned as the third muniment, which authorized Jarnigan, as guardian and trustee, to sell and convey the land in controversy, directed a report of the sale to be made by him to the court. This report recites a sale to Wm. H. Chatfield, trustee, and was confirmed, and the guardian and trustee was directed to convey the lands to him. No conveyance was made to Chatfield, but was made to John J. Mitchell, as is shown by appellant's fourth muniment of title. These defects can not be cured by the decree of the Mississippi Chancery Court rendered in 1899 in an action between Haggart & McMasters v. A. H. Chatfield, trustee, and Mary C. Gilbert, reciting that John J. Mitchell was the purchaser, and that the report of the guardian that Chatfield was the purchaser was a clerical misprision. Nowhere in appellant's chain of title does it appear that Haggart & McMasters have ever had or claimed title to the lands in controversy; and the record discloses that, at the time this decree was rendered, H. R. Allen was a claimant under the Jones title, and C. E. L. McCauley was a claimant under a tax title, that neither of them was made a party to the suit, and they are not mentioned in the decree. In so far as it seeks to affect the lands in controversy, the decree is a nullity and subject to attack, either directly or collaterally. 49 Ark. 397; 58 Ark. 181; 59 Ark. 483; 60 Ark. 369; 62 Ark. 439; 34 Ark. 291.

2. The owner of land can show actual payment of taxes; and, in so far as may be necessary in so doing, contradict the record showing of a sale. 35 Ark. 585; 51 Ark. 397; 19 Ill. 183; 26 Id. 507; 80 Id. 183.

3. Payment of taxes by the holder of the vendor's lien inured to the benefit of appellees. The holder of a vendor's lien is, in contemplation of law, a mortgagee. 14 Ark. 628; 60 Ark. 595. By virtue of their liens and the relation created thereby, Driver & Thompson and Hale & Crenshaw were charged with the duty of paying the taxes on the land, and precluded from purchasing at a tax sale. 2 Cooley on Tax. (3 Ed.) 708; 3 Ark. 453; 73 Ark. 45. See, also, 70 Wis. 111; 73 Ia. 423; 89 Cal. 196; 109 Cal. 268.

4. Under the doctrine of laches appellant's claim is barred. At no time from the year 1879 to the year 1903 did appellant and those under whom it claims pay taxes on these lands, or assert any claim or title thereto. It is apparent that appellant and its immediate vendors regarded the claim as a merely speculative one. Equity will not permit them to remain idle, refuse to pay the taxes lawfully assessed against the land, and speculate upon its enhanced value at this late day. 94 U.S. 159; 120 U.S. 534; 160 U.S. 237; 178 U.S. 207; 42 Ark. 289; 55 Ark. 85; 60 Ark. 50; 75 Ark. 312; 120 F. 893.

J. T. Coston and Murphy, Coleman & Lewis, for appellant in reply.

1. If the sale made pursuant to the original decree named as appellant's third muniment of title was actually made to Mitchell, instead of Chatfield, as stated in the guardian's report, and the sale was confirmed, though the name of the purchaser was erroneously stated in the report, this vested the equitable, if not the legal, title in Mitchell, and that is sufficient for the purposes of this suit. 77 Ark. 242. The heirs of Wm. H. Chatfield were duly notified, appeared by attorney, and consented to the nunc pro tunc order correcting the record so as to show that Mitchell was the actual purchaser. The court had plenary power to make this correction by nunc pro tunc order. 1 Black on Judgments (2 Ed.), § 161; 33 Ark. 475; 9 Ark. 185; 45 Ark. 240; 40 Ark. 224; 105 Wis. 323; 50 Mo. 145; 123 N.Y. 520. It may correct a clerical misprision with respect to the names of parties on its own motion at any time, and it is always in the power of the court, even after adjournment of the term, to correct a mistake in the entry of its own judgment. 33 Ark. 218; I Black on Judgments (2 Ed.), § 155; Id. § 160; 51 Ark. 287; 24 Wis. 477; 16 F. 708; 43 Mo.App. 168; 9 Col.App. 41; go Mich. 270; 68 Wis. 248; 62 Minn. 498; 17 Am. & Eng. Enc. of L. (2 Ed.), 818; 33 Cal. 480; 63 Tex. 435; 41 Ala. 292; 8 Mont. 305; 75 Ark. 12. Appellees were not parties to the proceedings to correct the record, could not have objected to the order if they had been present, and were not entitled to notice. 136 F. 27. The nunc pro tunc decree was admissible against the appellees for the purpose of making out a chain of title. 35 Ark. 321.

2. The sole ground set up in the answer upon which appellees seek to base the application of the doctrine of laches is that appellees have paid the taxes for a number of years. This is not sufficient. 75 Ark. 194; 70 Ark. 256; 50 Ark. 390; 45 Ark. 81.

OPINION

RIDDICK, J.

This action was brought against the defendants by the Osceola Land Company to quiet its title to 1,280 acres of wild and unimproved land in Mississippi County in this State.

In this complaint plaintiff alleges that in February, 1879, the State of Arkansas by its patent conveyed the land in controversy to W. A. Jones. The chain of title under which plaintiff claims the land commences with this conveyance from the State to Jones in 1879. This patent from the State to Jones is not set out in the record, but there is an agreement of counsel in the following words: "That the abstract of title to the lands in controversy be and the same is hereby agreed to be used in evidence as the evidence of the title under which the lands are claimed in lieu of copies of such records as may pertain to same and which may be mentioned in said abstract of title."

Counsel for defendant by this agreement seems to have admitted that the State by its patent conveyed this land to W. A. Jones in 1879, yet, if we concede that plaintiff holds by mesne conveyances from W. A. Jones, there is still no allegation and nothing to show the nature of this patent from the State or the recitals therein, nor is there any allegation or evidence to show that the State was the owner of the land at the time it was conveyed to Jones. Defendants in their answer allege that these lands were entered by W. A. Jones about 1858, and that he received a certificate of purchase therefor from the State; that afterwards for a valuable consideration he transferred the certificate of purchase to W. C. Davie; that Davie conveyed the land to Rice Stewart, who paid taxes on the land continuously from 1858 down to the year 1892, when Stewart died. In 1893 the land was sold for the non-payment of the taxes for the year 1892, and purchased by C. E. McAuley, under whom defendants hold.

Taking these two opposing chains of title set up by plaintiff and defendants in connection with the agreement of counsel above referred to, we may assume that the State did own this land and that W. A. Jones, under whom plaintiff claims, purchased it from the State sometime about 1858, and that afterwards in 1879 a patent was issued by the State to Jones conveying him the title. But the lands became subject to taxation so soon as they were purchased. The evidence shows that they were on the tax books in 1872, and that one Rice Stewart claimed these lands and paid taxes on them from that date down to 1892, when, as before stated, the lands were forfeited for taxes and purchased by C. E. McAuley. McAuley and those holding under him paid the taxes from the time of his purchase down to 1901. The facts in reference to the discharge of the taxes of 1901 is as follows. The father of defendants died some months after the taxes for that year became due, and on account of his sickness or for some other reason the taxes were not paid before the day of the sale of land for non-payment of taxes. But Hale and...