Rinke v. Weedman

• Decision Date: 12 December 1960
• Docket Number: No. 5-2231,5-2231
• Citation: 232 Ark. 900,341 S.W.2d 44
• Parties: Benny RINKE, Guardian, et al., Appellants, v. Mark WEEDMAN et ux., Appellees.
• Court: Arkansas Supreme Court

Page 44

341 S.W.2d 44

232 Ark. 900

Benny RINKE, Guardian, et al., Appellants, v. Mark WEEDMAN et ux., Appellees.

No. 5-2231.

Supreme Court of Arkansas.

Dec. 12, 1960.

Lasley & Lovett, Gentry, Gentry & Mott, Rose, Meek, House, Barron & Nash, Little Rock, for appellants.

Owens, McHaney & McHaney, Frank J. Wills, Little Rock, for appellees.

ROBINSON, Justice.

The issue in this case is the ownership of a tract of wild and unimproved land west of Little Rock in Pulaski County, consisting of 37.13 acres. Appellants own the land or a substantial part thereof if appellee has not acquired it by adverse possession. So there may be a clear understanding of the issue, it is necessary to mention several transactions in connection with the land which have occurred over a period of about fifty years. Prior to 1914 and land was owned by Alexander Robertson and had been platted into lots and blocks as Arkansas Heights Addition. The plat was duly recorded. Robertson let the property forfeit for general taxes for the years 1914, 1916 and 1917. Later R. M. Birnbach obtained a deed from the State to the lands and in 1921 deeded the property to R. A. Rinke and F. A. Rinke. In 1923 and land was again allowed to forfeit for taxes. F. A. Rinke was adjudged insane in 1935. R. A. Rinke died in 1939 and his widow died in 1941. In 1939 the State Land Commissioner deeded the land to appellee, Mark Weedman, and Weedman, had paid taxes on it for more than seven consecutive years at the time appellants commenced this action.

Alexander Robertson died testate in 1921. His entire net estate was placed in trust, with the income therefrom to his widow, Abigail Robertson, for life, upon her death the income to be used for educational purposes known as Abigail Robertson Scholarship Trust. No children were born to Alexander and Abigail Robertson. The lands were a new acquisition and Abigail Robertson renounced the will of Alexander Robertson, thereby acquiring a one-half interest in the Alexander Robertson estate. The Abigail Robertson Scholarship Trust is still active, and it conveyed its interest in the property to appellant, Fred Rinke, on November 21, 1958.

The parties have agreed that all the tax sales are void. Therefore, title to one-half interest in the land would be in Fred Rinke under the 1958 deed from the Abigail Robertson Scholarship Trust and title to one-half interest would be owned by the beneficiaries under the will of Abigail Robertson if Weedman has not acquired the property by adverse possession.

There are two points that need to be discussed:

First, does the deed from the State give appellee Weedman the color of title which he must have in order to successfully claim ownership by adverse possession under the provisions of Ark.Stats. § 37-102?

Ordinarily a tax deed from the State, void because a tax sale is void, nevertheless constitutes color of title. Cayce v. Nordin, 221 Ark. 383, 253 S.W.2d 338, and cases cited therein. A redemption of tax forfeited land, however, does not in inself constitute color of title. Galloway v. Battaglia, 133 Ark. 441, 202 S.W. 836; Rouse v. Teeter, 214 Ark. 488, 216 S.W.2d 869. Appellants contend that Weedman is estopped to deny that he was the owner of the property at the time of obtaining the deed from the State and therefore his acquisition of the property must be considered a redemption and not a purchase.

Before Weedman obtained a deed from the State he knew the land had been platted in lots and blocks and forfeited as such because of the nonpayment of general taxes. In connection with acquiring the land from the State he engaged the services of an attorney. The attorney advised getting a deed from Mrs. Fred A. Rinke, whose husband had been declared insane in 1935. It will be recalled that in 1921 Rinke obtained title based on a tax sale and in turn had allowed the property to again forfeit for taxes in 1923. (It will also be recalled that the parties agree that all the tax sales are void.)

Weedman did get a deed to the property from Mrs. Rinke, and acting on the theory that this deed gave him title to the property, he petitioned the county court to convert the platted property to acreage under the provisions of Act 91 of 1929 [Ark.Stats. § 19-407 et seq.], which would thereby enable him to redeem the property from the State for $1 per acre under the provisions of Act 284 of 1937 [Ark.Stats. § 10-903]. Acting on Weedman's petition, the county court did convert the platted property back to acreage and Weedman obtained a deed from the State to the property for the consideration of $1 per acre and other fees that are mentioned in the deed.

We need not go into the question of whether the deed from Mrs. Rinke gave Weedman color of title, because we have reached the conclusion that the deed from the State did give him color of title; hence it is immaterial whether Mrs. Rinke's deed gave him color of title. Appellants base their contention that the State's deed did not give Weedman color of title because, they say, Weedman is estopped to deny he was the owner of the property by reason of his assertion of ownership made in getting the property reduced to acreage and purchasing from the State on the theory of ownership.

The doctrine of equitable estoppel has no application because nothing that Weedman did caused appellants to act in any manner to their detriment. It is agreed that all the tax sales, including the one under which Rinke originally claimed ownership through his purchase from Birnbach, are void. And Rinke does not claim by adverse possession. It follows, therefore that Rinke acquired no interest whatever in the property until he obtained a deed from the Abigail Robertson Scholarship Trust in 1958, and of course he obtained no interest at that time if the Trust had none to convey. And Weedman's representation that he was the owner of the property under the deed from Mrs. Rinke in no way caused the Scholarship Trust to act to its detriment. Although the Trust has been in existence for more than 35 years, it paid no taxes on the property and did not carry it as an asset and showed no interest in the property until it gave the deed to Rinke in 1958. At one time Weedman inquired of the trust officer of the bank acting as trustee, regarding the property, and was told that the Trust owned no interest in the property.

But appellants argue that the doctrine of judicial estoppel is applicable; that once Weedman claimed in a judicial proceeding that he was the owner, he is estopped to later assert in another proceeding, where the parties are not the same, that he was not the owner at the time of his purchase from the State in 1939.

True, in petitioning the county court to reduce the lots and blocks to acreage and purchasing from the State, Weedman represented himself as owner, but we do not think these representations estop him from now showing just what the facts were in his acquisition of the property. To support their contention of judicial estoppel, appellants cite the cases of Womack v. Womack, 73 Ark. 281, 83 S.W. 937, modified 83 S.W. 1136; Robinson v. Cross, 98 Ark. 110, 134 S.W. 954; Hudson v. Union & Mercantile Trust Co., 155 Ark. 605, 245 S.W. 9. Womack v. Womack was a divorce case. Property was purchased in the wife's name, paid for by both the husband and wife. The husband asked that the deed be set aside. The Court said: 'Conceding that Womack purchased the land and paid for it, and had the title taken in name of his wife, it was absolutely her property. 'If a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the advances will be presumed to be gifts. The law will not imply a promise on her part to repay him.' Ward v. Ward's Estate, 36 Ark. 586. But the facts do not justify this conclusion, for the evidence shows her work contributed at least equally to the acquisition of this property, and he has in bankruptcy proceeding treated it as hers, not his, and he cannot now be heard to say it was his. Rodgers, Domestic Rel. § 259. There can be no question that she owned this property freed of any legal, equitable, or moral obligation to convey to him.' [73 Ark. 281, 83 S.W. 939.] Thus it will be seen that the Court held in favor of the wife because she was the absolute owner of the property and not because Womack was estopped to claim ownership after asserting in a bankruptcy proceeding that the property belonged to his wife.

In the Robinson case the doctrine of judicial estoppel is not involved at all. In the Hudson case a widow alleged that certain money belonged to her husband's estate and prayed that she be allowed an interest therein. The court allowed her one-third, which she accepted. The administrator in good faith paid the balance on decedent's debts. In the circumstances it was held that the widow was estopped to claim all the money as her own property. This is clearly a case of equitable estoppel. The Court said: 'Appellant's contention is that under the agreed statement of facts appellee's testatrix was estopped from claiming the fund on deposit as her individual estate, and that the court erred in not dismissing the bill. We think they are correct in this contention. The doctrine of equitable estoppel has been defined by this court as follows: * * *'. Thus it will be seen that this case went off on the...