Reynolds v. Snyder

• Decision Date: 15 November 1915
• Docket Number: 240
• Citation: 180 S.W. 752,121 Ark. 33
• Parties: REYNOLDS v. SNYDER
• Court: Arkansas Supreme Court

180 S.W. 752

121 Ark. 33

REYNOLDS v. SNYDER

No. 240

Supreme Court of Arkansas

November 15, 1915

Appeal from Ouachita Chancery Court; James M. Barker, Chancellor affirmed.

STATEMENT BY THE COURT.

Appellee brought this suit to quiet his title to a tract of land in Ouachita County, alleging that he was the owner thereof, that he and those under whom he claimed had paid the taxes on the lands, which were wild and unoccupied, for seven consecutive years, under color of title, and alleged that the tax title under which defendant claimed it was void.

The answer denied that appellee was the owner of the lands and that he was in possession thereof by the payment of taxes as alleged and claimed the title under a clerk's tax deed executed June 12, 1914.

The testimony shows that Sam Dunn and wife conveyed the land to Nathan Miller on March 28, 1904, who in turn conveyed it to Oliver O. Miller on January 3, 1905.He conveyed to W. F Bernard on June 17, 1908, who made a deed to Arissa S. Miller on June 24, 1908.She conveyed the lands to V. D. Maxey on October 6, 1909, who by warranty deed conveyed them to C. V Snyder on April 6, 1911.

The taxes were paid by appellee and his grantors for the years from and including 1901 to 1911, with the exception of the year 1906.Relative to this year it appears that the tax receipt had been lost and the tax records introduced in evidence show, in the real estate book, for 1906, an entry as follows: Owners name, Miller, Oliver; the description of the land; valuation, taxes, and under the column marked "when paid,""4/10."It also shows the figures "235" in the column for "Page of record of receipt."There was no receipt recorded on that or any other page of the tax receipt record, however, nor any further testimony showing by whom the taxes were paid; the records did show that the lands were not returned delinquent or sold for taxes for that year.

Oliver Miller paid the taxes for the years 1905 and 1907 and, as already stated, conveyed the lands on June 17, 1908.

The testimony shows also that the tax deed was void because of the clerk's failure to certify at the foot of the record of delinquent lands, before the second Monday in June, in what newspaper the delinquent list was published.

The court found in favor of the plaintiff and quieted his title, from which judgment this appeal is prosecuted.

Judgment affirmed.

A. N. Meek, for appellant.

Appellee has not proved title in himself by the statute of limitations or otherwise, sufficient to overcome appellant's tax deed, which by statute is prima facie title.Kirby'sDig., § 7105.

The plaintiff in a suit to quiet title must show title in himself.76 Ark. 447.

The tax receipts offered by appellee are not in proper form, do not describe the land in controversy, with reference to their location to either the base line or the Fifth Principal Meridian.94 Ark. 119.The failure to prove a payment of taxes for the year 1906 broke the continuity of such payments, and the attempt to overcome this break in continuity by the list of real estate subject to taxation for this year, whereby it appears that the lands were assessed in the name of Oliver Miller and that the taxes were paid, proves nothing except that for that year somebody paid the taxes.

The proof is not sufficient to discharge the burden of proving that Oliver Miller, one of his grantors, paid the taxes for that year.94 Ark. 118.From the testimony the conclusion is clear that no tax receipt of the year 1906 was issued and that the taxes on the lands were not paid.Kirby'sDig., §§ 7061, 7062, 7063.

Chas. N. Martin, for appellee.

1.The original receipt for the taxes for the year 1906, having been lost, appellee introduced the real estate tax book for that year, the same being the next best evidence.From this it appeared that the land was assessed in the name of O. O. Miller, and that on the margin of the record opposite his name, under the heading "When paid" appears the notation "4/10."This is sufficient evidence to warrant the finding that the taxes for that year were paid.59 Hun (N. Y.) 129;128 N.Y. 334; 28 N.E. 604.And, since the statute requires that real estate shall be assessed in the name of the owner, Kirby'sDig., § 7018, that they were paid by O. O. Miller.See also139 S.W. 28;37 Cyc. 1167.Moreover, since the proof shows that the land was not returned delinquent for that year, and that the land was assessed in the name of and the taxes paid by O. O. Miller the year before, and the year following, the law will presume that he paid the taxes on the land for the year 1906.Supra;2 Blackwell on Tax Titles, 5 ed., § 834;Id. 838, § 837.

The title is established in appellee by proving seven consecutive payments of taxes under color of title and this warranted the chancellor in cancelling the void tax sale and quieting title in appellee.97 Ark. 371;83 Ark. 534;80 Ark. 74;74 Ark. 302;38 Ark. 181.

2.The tax sale was void for failure of the clerk to certify the record of delinquent lands before the day of sale.84 Ark. 320;81 Ark. 296;80 Ark. 583;74 Ark. 584;68 Ark. 248.

KIRBY, J. SMITH, J., dissenting.

OPINION

KIRBY, J., (after stating the facts).

Appellant contends that the appellee failed to show sufficient title in himself to warrant the relief granted as against his void tax deed, which was prima facie evidence of title.

In a suit to quiet title the plaintiff must recover upon the strength of his own title, and not upon the weakness of the title of his adversary.Carpenter v. Smith,76 Ark. 447, 88 S.W. 976;Wilson v. Rogers,97 Ark. 369, 134 S.W. 318;Kirby's Digest, § 7105;Osceola Land Co. v. Chicago Mill & Lumber Co.,84 Ark. 1, 103 S.W. 609;Rhea v. McWilliams,73 Ark. 557, 84 S.W. 726.

It is also true that the payment of taxes under color of title for seven consecutive years upon wild and unoccupied lands, confers title by limitation.Section 5057, Kirby's Digest;Towson v. Denson,74 Ark. 302, 86 S.W. 661;Van Etten v. Daugherty,83 Ark. 534, 103 S.W. 737;Wilson v. Rogers,97 Ark. 369, 134 S.W. 318;Paragould Abstract Co. v. Coffman,100 Ark. 582, 140 S.W. 730.

There is no question but that the conveyances of the land from Ida and Jno.Bell in July, 1901, down to and including the deed from Maxey to Snyder, appellee, on April 6, 1911, constituted color of title, nor that the lands are wild and unoccupied.It is strongly urged, however, that there is not sufficient testimony to support the court's finding that the taxes were paid by the appellee and his grantors for the seven consecutive years and no testimony showing by whom they were paid for the year 1906.The lands were not returned delinquent and sold for the non-payment of taxes for the year 1906 and the record shows the taxes for 1905, before, and 1907, afterward, to have been paid by Oliver O. Miller, who was named in the real estate tax book for the year 1906 as the owner.There was also the notation on said tax book by the collector in the column "When paid," showing the taxes on the tract of land to have been paid "4/10,"--fourth month, 10th day, that year.

We think this is sufficient evidence in view of the further showing that the lands were not returned delinquent nor sold for taxes that year, to support the court's finding that the taxes were paid.2 Blackwell on Tax Titles, 837;37 Cyc. 1167.

The law requires the clerk in making the tax books to set down each separate tract of real property opposite the name of the owner and that the tax books shall be a public record and preserved as other records of the county, in the office of the county clerk.Sections 7018,7028, Kirby's Digest.

The owner of the lands is required to pay the taxes thereon and the tax books show the name of Oliver O. Miller as owner, who had a deed therefor and had paid the taxes thereon for the year 1905 and 1907, the inference of fact arises, the taxes having been paid for 1906, that they were paid by him, and is sufficient to support the court's...