Price v. Greer

• Decision Date: 15 February 1909
• Citation: 116 S.W. 676,89 Ark. 300
• Parties: PRICE v. GREER
• Court: Arkansas Supreme Court

116 S.W. 676

89 Ark. 300

PRICE v. GREER

Supreme Court of Arkansas

February 15, 1909

Appeal from White Circuit Court; John B. McCaleb, Special Judge reversed.

Judgment reversed and remanded.

J. W &M. House, for appellant.

1. It was error to permit appellee to amend his complaint on July 15, 1907, so as to allege two causes of action which had not been previously alleged. They were barred by limitation. Where a new cause of action is brought into complaint, the period of limitation is from the date of such amendment. 41 F. 750; 139 Ill. 504; 51 Am. St. Rep. 430, note; 51 S.W. 844; 60 Kan. 691; 45 Pa. 404; 81 Ala. 230; 170 Ill. 166; 107 Ia 666; 74 F. 291; 158 U.S. 292; 95 F. 308; 135 Cal. 102; 64 Ark. 348; 59 Ark. 446.

2. A non-resident alien may acquire title to lands in this State by deed, grant or devise, but not by operation of law. Greer could not acquire title by virtue of a statute of limitations, and the jury should have been so instructed. Kirby's Digest, § 623; 64 Ark. 381; 40 Ala. 689; 4 Wheaton 453; 4 Moore's Int. Law Dig. 32, 34; 4 Ala. 99; 12 Cal. 450; 24 Me. 559; 33 Barb. [N. Y.] 360; 1 U. C. Q. B. [Can.] 37; 2 Am. & Eng. Enc. of L., 2d Ed., 73; 53 Ala. 411; 18 Ala. 565; 6 Cal. 250; 69 Conn. 416; 164 Ill. 48; 106 Ia. 303; 41 Ia. 481; 20 Ia. 45; 33 S.W. 444; 10 S.W. 191; 47 Am. Dec. 532; 29 Ark. 647; 36 Am. Dec. 613; 31 L.R.A. 146; 21 Am. Rep. 348; 40 N.C. 207; 5 Paige 114; 3 Leigh [Va.] 492; 32 Barb. [N. Y.] 263; 2 Cyc. 95, 96.

3. Where suit is brought to remove a cloud from title, or to recover possession, the possession created by the payment of taxes under the act of March 18, 1899, is suspended, and the limitation necessarily ceases.

4. Where an adverse claimant of land, who is not in actual adverse possession but only in constructive possession, recognizes the title, and offers to purchase the interest of the true owner during the statutory period, this will interrupt the running of the statute, and such claimant will be estopped to deny the title of the owner. 163 Ill. 277; 44 Cal. 474; 63 Cal. 113; Id. 150; 4 Wend. 507.

5. In order to obtain the benefit of the statute, tax payments must be made within the time prescribed by law; otherwise there is a break in the payment and in the constructive possession under the statute. 83 Ark. 522. Payment of the taxes after the 10th of April cannot be considered a payment within the time prescribed by law. 53 P. 421; 47 Ill. 17; 68 N.E. 735. In this case the first payment of taxes on the land after the passage of the act of 1899 was on April 5, 1900. Three full years from this date should have elapsed before the constructive possession ripened into title.

6. Under the statute seven full years must elapse from the date of the first payment of taxes, before title is acquired. 83 Ark. 159; 183 Ill. 548; 23 Ill. 507; 23 Ill. 387; 109 Ill. 397; 99 Ill. 372; 96 Ill. 415; 99 N.W. 855; 45 Ill. 388: 133 Ill. 308.

S. Brundidge, Jr., for appellee.

1. The amendments to the complaint stated no new causes of action, and in no way prejudiced appellant's rights or defense. Their allowance was addressed to the sound discretion of the court, and, being made in furtherance of justice, appellant cannot complain. 60 Ark. 526; 68 Ark. 315; 80 Ark. 326; Kirby's Digest, § 6145; 85 Ark. 39.

2. The act of March, 1899, carries no provision limiting its application to citizens of the State or United States. An alien having under our law the right to buy, acquire and inherit property, he is entitled to all the means provided by law for perfecting his title. 4 Moore's Digest International Law, § 536, p. 7; 3 Story 458. Appellant is in no position to question appellee's citizenship. That question could only be raised by the State or national government. 77 Ark. 195; 2 Wheat. 259; 9 Pet. 301; 113 U.S. 89.

3. Appellee is not estopped. It is only where the source of title is identical, and the parties have no other title to rely on, that neither party can go behind the person from whom they hold or show that his claim is not good. 41 Ark. 17.

4. The court properly refused appellant's request to charge the jury in effect that before appellee could claim title by payment of taxes for seven years he must show that he had paid the taxes by the 10th of April in each year.

J. W. & M. House, for appellant in reply.

The rule is uniform that where an alien brings suit against a citizen, the citizen can by plea raise the question of the plaintiff's being an alien. 21 Minn. 175; 11 Mass. 119; 9 Mass. 454; Id. 377; 9 Mass. 363; 15 Tex. 495; 20 Fed. Cas. No. 11579; 3 Id. No. 1219; 37 N.C. 423.

OPINION

McCULLOCH, C. J.

This is an action instituted by the plaintiff, B. W. Greer, against C. A. Price to recover damages for an alleged trespass on lands to which the plaintiff asserted title by payment of taxes for seven years under color of title. The case has been here on a former appeal, and a judgment in favor of the plaintiff was reversed. Price v. Greer, 76 Ark. 426, 88 S.W. 985. The action was commenced May 30, 1903, and it was alleged in the complaint that "the defendant on or about June 27, 1901, and on divers days and times since then, did unlawfully enter upon the lands and cut and remove the timber, which was converted to his own use."

After the case was remanded, the court permitted the plaintiff to amend his complaint by inserting the following statement: "And he and those under whom he claims title to said lands have been in possession of and paying taxes thereon for the past thirty-nine years." Also by inserting the following: "That the greater part of said timber, to-wit: two thousand dollars' worth, was cut in 1902 and 1903." It is insisted that the last amendment set forth a new cause of action, and that the court erred in permitting it to be introduced into the pleadings. And it is also insisted that the amendment was equivalent to the commencement of a new action as to the timber cut in 1902 and 1903, and that it was barred by the statute of limitations pleaded by the defendant.

This contention is unsound, as the amendment did not set forth a new cause of action, but merely stated more specifically the cause of action set forth in the original complaint.

The evidence establishes the fact that the lands from which the defendant took the timber in controversy were originally owned by one G. W. Andrews. The plaintiff claimed title by reason of having paid taxes, under color of title, for more than seven years, the last three payments being subsequent to March 18, 1899, and the land being unimproved and uninclosed. Kirby's Digest, § 5057. The third payment after March, 1899, was made on January 22, 1902, and the plaintiff seeks to recover the value of timber cut after that time. The defendant attempts to justify this cutting of timber by asserting title thereto under a deed executed to him by Andrews on May 27, 1901, conveying the timber to him. On May 8, 1901, Andrews instituted in the chancery court of White County a suit against Greer, the plaintiff herein, to quiet his title, and in his complaint tendered to the latter the amount paid out for taxes. On September 24, 1902, while that suit was pending, Andrews and Greer entered into a written contract whereby Andrews agreed to convey to Greer all of said lands in litigation, and Greer agreed to pay Andrews the sum of $ 400 and to reconvey certain tracts of the land [not those in this controversy] to him. This contract was performed by Andrews by executing to Greer a deed dated October 4, 1902, conveying the land specified; and on June 11, 1903, which was after the present action was commenced, the suit of Andrews against Greer was dismissed by consent of both parties.

The foregoing facts were pleaded by the defendant in an amendment to his answer filed after the case was remanded by this court on the former appeal; and the evidence adduced at the trial established them. Not all of the tracts of land, however, from which the evidence tends to show that the defendant cut timber were embraced in said suit of Andrews against Greer; but, as on the former trial, the evidence does not show the amount and value of timber cut from each tract, and the verdict of the jury fixes the gross value of timber cut from all the land. The case must be reversed for a new trial if the evidence fails to show that the plaintiff had title to or possession of all the tracts at the time of the alleged trespass. It will be seen from the foregoing recitals of facts that Andrews, the owner of the land, commenced a suit in equity against Greer to quiet his title to the land on May 8, 1901, before the latter's possession by reason of paying taxes thereon ripened into title; that during the pendency of that suit Andrews sold and conveyed the timber on the land to defendant Price, and that the suit between Andrews and Greer was thereafter terminated by the former conveying the lands to the latter. This conveyance was executed to Greer after the greater portion, if not all, of the timber had been cut by Price.

Do those facts establish title to the lands in plaintiff Greer at the time the defendant cut the timber, so as to enable him to recover of defendant the value thereof? We say that they do not. The pendency of the suit of Andrews against Greer did not, unless prosecuted to successful termination, prevent the statute bar from attaching in Greer's favor on payment of taxes for the third time after March 18, 1899; but when so prosecuted the result of the suit related back to the date of its commencement, and prevented the statute bar from attaching. The suit was not prosecuted to final judgment, but it was terminated by the conveyance of the subject-matter thereof by Andrews to Greer. Inasmuch as the statute bar never attached in Greer's favor against...