Sibly v. England

• Decision Date: 26 April 1909
• Citation: 119 S.W. 820,90 Ark. 420
• Parties: SIBLY v. ENGLAND
• Court: Arkansas Supreme Court

119 S.W. 820

90 Ark. 420

SIBLY v. ENGLAND

Supreme Court of Arkansas

April 26, 1909

Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor affirmed.

Decree affirmed.

Jno. W Blackwood and Geo. Sibly, for appellant.

1. The deed to Dismukes & Forsythe was void. There was no seal attached. Hence it was not the deed of the corporation. 1 Devl. on Deeds, p. 317, §§ 335, 336; 1 Warvelle on Vendors, p. 483, § 2, and note 1, p. 482.

2. Seals have not been dispensed with in Arkansas in cases of corporations. 1 Warvelle on Vendors, 494, § 2. To bind a corporation by deed, the instrument must be sealed. 1 Dembitz on Land Titles, p. 395, § 55, p. 229, § 552-3; 1 Mor. on Corp., § 552-3; 2 Id., § 227.

3. Payments of taxes for seven years in succession, three of which were since the passage of the act of March 18, 1899, on wild, unoccupied lands is the same as actual possession. 74 Ark. 302; 83 Id. 154.

4. A title acquired by adverse possession is sufficient to quiet title. 83 Ark. 534.

Rose Hemingway, Cantrell & Loughborough and Trimble, Robinson & Trimble, for appellee.

1. The deed to Dismukes & Forsythe was valid, and appellee had no title. It is not necessary that the record show that the corporate seal was attached. The instrument itself recites that fact. 1 Devlin on Deeds, § 700; 13 Cal. 510; 16 Id. 166; 4 Bibb, 407; 5 Dana, 188; 61 Mo. 378; 86 N.Y.S. 1.

2. The recital in the deed that it is sealed raises the presumption that it was sealed, and that the officer who executed it was authorized to do so. 10 Cyc. p. 1018. See also 38 Miss. 359.

3. The modern doctrine is that a corporation can do anything without a seal that it can do with a seal. 1 Mor. on Corp. 338; 89 F 447. And a deed without a seal is good in equity. 1 Devlin, Deeds, § 246:

4. Payment of taxes for seven years in succession by any person is not shown. 83 Ark. 520; 75 Id. 416, 422.

Jno. W. Blackwood and Geo. Sibly, in reply.

The deed was not recorded in the county where the land was. Kirby's Digest, § 763. 73 Ark. 416 is not applicable.

OPINION

BATTLE, J.

George Sibly, claiming to be the owner of the northeast quarter of the southeast quarter of section twenty-four in township two north, and in range nine west, brought this suit against Eleanor M. England, in the Lonoke Chancery Court, to quiet title to the same. His complaint was filed, and a warning order was issued on the 24th day of May, 1901.

Plaintiff deraigned title from the Memphis & Little Rock Railroad Company. He alleged that the land was wild and unimproved and that he paid taxes thereon, under color of title, for seven successive years, not less than three of which were subsequent to the passage of the act entitled "An act for the protection of those who pay taxes on land," approved March 18, 1899, and by that means acquired title to the land, if he was not already the owner; and further alleged in an amendment to his complaint that he paid taxes on the land for 1882 and 1883, and his vendor paid for the years 1883 and 1884, and he for the years 1885, 1888, 1890, 1891, 1892, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904; and that defendant and those under whom she claims paid taxes on the land for only two years, 1881 and 1886, and that it does not appear from records who paid for 1887 and 1893.

Sometime in the year 1901 the defendant answered, and at the same time filed a cross-bill. She denied that plaintiff was the owner of the land, and that he paid taxes of seven successive years as he stated. She alleged that she was the owner, and deraigned title, in part, from the Memphis & Little Rock Railroad Company. She dismissed her cross-complaint before the cause was fully heard.

The land once belonged to the Memphis & Little Rock Railroad Company. Plaintiff alleged that it (company) executed a mortgage on all of its lands, including the lands in controversy, on the first day of May, 1860, to secure its bonds; that this mortgage was afterwards foreclosed by decree of a court, and the land in controversy and other property were sold under the decree and purchased by trustees who conveyed to the Memphis & Little Rock Railway Company, from which plaintiff purchased. One of the exhibits in this case shows that the Memphis & Little Rock Railroad Company executed the mortgage referred to on the first day of May, 1860, and reserved in the mortgage "the privilege of selling any of the lands mortgaged and applying the proceeds thereof to the building, completing and equipping its road." But there is no evidence that the land in controversy was sold under a foreclosure of any mortgage. On the contrary, the decree of foreclosure set out in the record in this case directed the sale of the lands mortgaged which had not been sold before the first day of December, 1873, and was then owned by the first mortgagor, the Memphis & Little Rock Railroad Company, and no other of such lands.

A certified copy of the record of the deed executed by the Memphis & Little Rock Railroad Company, on the ninth day of July, 1861, to Elisha E. Dismukes and Silas F. Forsythe, conveying to them the land in controversy, and duly acknowledged and recorded, was filed and used as evidence in this cause.

On final hearing the court dismissed plaintiff's complaint for want of equity.

It is unnecessary to determine whether the defendant had title to the land. It has been repeatedly held by this court that "in suits to quiet title the plaintiff must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and can not rely upon the weakness of his adversary's, and the burden is upon him to show title. Lawrence v. Zimpleman, 37 Ark. 643; Kelley v. Laconia Levee District, 74 Ark. 202, 85 S.W. 249; St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 383, 86 S.W. 852; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 346, 92 S.W. 534; Mason v. Gates, 82 Ark. 294, 301, 102 S.W. 190; Little v. Williams, 88 Ark. 37, 113 S.W. 340.

The deed of the Memphis & Little Rock Railroad Company to Dismukes and Forsythe was duly acknowledged and filed for record on the 8th day of November, 1866. The deed under which plaintiff claims was executed and acknowledged on the 27th day of September, 1888, and filed for record and recorded on the 26th of December, 1894. If the deed to Dismukes and Forsythe was valid, it is evident that Sibly had no title.

Section 756 of Kirby's Digest provides: "Every deed or instrument of writing conveying or affecting real estate, which shall be acknowledged or proved and certified, as prescribed by this chapter, may, together with the certificate of acknowledgment, proof, or relinquishment of dower, be recorded by the recorder of the county where such land to be conveyed or affected thereby shall be situate, and when so recorded may be read as evidence without further proof of execution." And in Apel v. Kelsey, 47 Ark. 413, 2 S.W. 102, this court held that a certified copy of a recorded conveyance is admissible in evidence without proof of the execution.

The deed to Dismukes and Forsythe is objected to on the ground that the record does not show that the corporate seal was attached. The deed closes with these words:

"In testimony whereof the said parties of the first part have caused this deed to be executed by affixing thereto their corporate seal, and the same being signed by the president of said company the day and date first above written.

"Memphis & Little Rock Railroad Company,

"By R. C. Brinkley, President."

The objection to the record of the deed does not affect its validity. The law does not require that the seal be impressed upon the record, and the fact that it does not appear does not...