Scott v. Mills

• Decision Date: 18 June 1887
• Citation: 4 S.W. 908,49 Ark. 266
• Parties: SCOTT v. MILLS
• Court: Arkansas Supreme Court

4 S.W. 908

49 Ark. 266

SCOTT v. MILLS

Supreme Court of Arkansas

June 18, 1887

APPEAL from Lonoke Circuit Court, F. T. VAUGHAN, Judge.

Judgment reversed and cause remanded.

John C. & C. W. England for appellants.

The court erred in declaring the law as asked for appellees, and in refusing to declare as asked by appellants.

1. To maintain title by limitation there must be actual, visible open, notorious and continuous adverse possession under claim of title for the full period of limitation. There must be no abandonment. See Sedg. & W. Tr. of Title to Land, secs. 725 728, 735, etc.; 27 Ark. 93; 61 Tex. 171; 14 Wall., 146.

2. The court erred in declaring appellant's deed void. The first, second and third grounds can in no wise affect appellants' rights, and the fourth and fifth are mere irregularities. Mansf. Dig., sec. 4475; 46 Ark. 96.

The certificate of the Clerk was not admissible as evidence.

S. R Allen and T. J. Oliphint for appellees.

The court properly declared the law for appellees. 34 Ark. 598; 38 id., 181. Possession once shown will be presumed to be continued until abandonment, disseizin or ouster is shown.

Possession of part under color of title is possession of the whole. 8 Cr., 229. A void deed gives color of title. 34 Ark. 547.

OPINION

BATTLE, J.

This was an action instituted by William E. Woodruff, Sr., and Anderson Mills, against Anthony and Albert Scott, for the recovery of certain lands in Lonoke county. Plaintiffs, to maintain their action, relied upon seven years' adverse possession under color of title. The color of title was sufficiently shown. Their right to recover depends upon the sufficiency of the evidence, of adverse possession. The evidence on this point is: The plaintiff, Mills, in 1870 or 1871, took possession of the land and deadened the timber on about sixty-eight acres, and paid the taxes on it from 1870 to 1876, inclusive. Plaintiffs did nothing on the land after making the deadening. After the payment of the taxes of 1876, it seems, they paid no attention to the taxes. Mills, however, testified he always claimed the land and never intended to abandon it.

The defendants relied on a deed from the State. The land was forfeited in 1878 on account of the non-payment of the taxes of 1877. Not having been redeemed within two years after the forfeiture, it was certified by the clerk to the Commissioner of State Lands as lands forfeited to the State. On the 27th of August, 1880, the defendants purchased it and the Commissioner of State Lands conveyed it to them by deed. This deed was introduced and read as evidence on the trial. Evidence was also introduced showing that defendants took possession under it and cleared and put into cultivation a part of the land, and were in possession at the commencement of this action. The only evidence introduced to show the invalidity of the deed was a certificate of the Clerk of Lonoke county to show that the assessment and forfeiture of this land for the taxes of 1877 was illegal, in which he certified he could not find in his office any record or evidence of the following facts:

"1. Oath of Assessor before entering on duties.

"2. Abstract of land in the county subject to taxation for 1876 delivered to Assessor by Clerk.

"3. Notice of Collector [under section 5165, Gantt's Digest,] that he would meet the tax-payers, etc.

"4. Notice of Clerk [under section 5185, Gantt's Digest,] of sale of delinquent lands.

"5. No proof of publication of notice of sale, except the certificate of Clerk that the same was made.

"6. No certificate of Collector as to sale.

"7. No record showing that Collector offered the lands by beginning at northeast corner of the tracts."

The court refused to declare the law, at the request of defendants, as follows:

"1. That when one claims title by limitation he must show, first--actual, visible, open and notorious possession in himself, and that such actual, visible, open and notorious possession has continued peaceably and uninterruptedly for a period of seven years; and that, therefore, before the plaintiffs can recover herein they must establish by positive proof that they have had the actual, open, peaceable, adverse and continuous possession of said land, either in person or through their agents or employes, for a period of seven years, without break or interruption; and that the mere going upon the land and deadening a part thereof, and afterwards paying the taxes thereon, is not sufficient evidence of itself to establish such possession.

"2. That if the evidence in this case shows that plaintiffs went upon said land in 1870 and deadened a part thereof, and then left said land, and did not re-enter upon it again for a period of seven years from 1870, and they exercised no other acts of ownership over it except to pay taxes, their plea of title by limitation fails, and they cannot recover."

But declared it, at the instance of plaintiffs, as follows:

"1. The court declares the law to be that possession once established by material acts of visible, notorious ownership must be presumed to continue until open, notorious and adverse possession be proven to be taken by another.

"2. That the tax deeds of plaintiffs, although void upon their face, are competent evidence to show color of title, and to define the boundary of plaintiffs' claim to title under the statute of limitation.

"3. That the possession of lands under deeds for the statute period of a part of said tracts described in them confers title to the whole."

The court, sitting as a jury, found that plaintiffs acquired a good title to the land by seven years' adverse possession under color of title, and that defendants' deed was void.

"1. Because Assessor did not, before entering upon the duties of his office, take and subscribe to the oath required by law.

"2. Because there is no proof that the land was advertised as required by the statute.

"3. Because there is no certificate of the Collector as to the sale of the lands.

"4. Because there is no notice given by Collector under section 5165, Gantt's Digest, that he would meet the taxpayers, etc.

"5. Because there was no notice by the Clerk under section 5185, Gantt's Digest, of sale of said lands.

"6. Because it does not appear that the lands were offered for sale by the Collector beginning at the northeast corner of said tracts."

And the court rendered judgment for the lands in favor of plaintiffs. Defendants, after filing motion for new trial and saving exceptions, appealed.

In support of the action of the court in refusing to declare the law as asked by appellants and declaring it as asked by appellees, Clements v. Lampkin, 34 Ark. 598, is cited. Appellees call our attention to the fact that Mr. Justice EAKIN, in delivering the opinion of this court in that case, said: "The possession of Topp's vendee, once established by material acts of visible, notorious ownership, which was done by putting negroes upon it, and making a deadening long known afterwards as the Lumpkin deadening, must be presumed to have continued, until open, notorious and adverse possession be shown to have been taken by another." In order to understand what was meant by this remark, it is necessary to know the facts in that case. The facts are as follows: The heirs of John W. Lumpkin, deceased, sued the heirs of Robertson Topp, deceased, for specific performance of a title bond to convey a tract of land, executed by Topp to Lumpkin, in the lifetime of both. Clements was made a defendant. He was charged with claiming a part of the land in controversy under color of an invalid title. The prayer of the complaint as against him was to remove a cloud from the title of plaintiffs. He denied the validity of plaintiffs' title, set up his own claim of title, and relied upon adverse possession and the statute of limitations. In order to sustain their action against Clements, it was necessary for plaintiffs to show that Topp had the title to the land and they were in possession. This court first found that Topp had the title. It then proceeded to say: "They (plaintiffs) show then the title bond from Topp to their ancestor, and prove, with reasonable certainty, that said ancestor, about the year 1854, entered into possession of said land, and deadened a large area, for clearing. " Having shown that Topp had the title and Lumpkin purchased of him, and under his contract of purchase took possession, it follows that he and his heirs were entitled to possession until they were ousted, and holding under the legal title it was presumed they remained in possession until the contrary was shown. In connection with this fact, when considering Clements' title by adverse possession, this court said: "The possession of Topp's vendee, once established by material acts of visible, notorious ownership, which was done by putting negroes upon it, and making a deadening long known afterwards as the Lumpkin deadening, must be presumed to have continued, until open, notorious and adverse possession be shown to have been taken by another," and proceeded to show that Clements had not ousted plaintiffs by any acts of open, notorious and adverse possession.

Plaintiffs in that case, made no effort to show title acquired by adverse possession, and any remarks made to show that they had would have been superfluous. All the court meant to say was, the plaintiffs having taken possession under the legal title were presumed to remain in possession until open, notorious and adverse possession be shown to have been taken by another. For the rightful owner is deemed to be in possession until he is ousted or disseized. This is the result of the well-settled principle of law that possession follows title in the absence of any possession adverse to it,...