Sparks v. Farris

• Decision Date: 20 December 1902
• Citation: 71 S.W. 255,71 Ark. 117
• Parties: SPARKS v. FARRIS
• Court: Arkansas Supreme Court

71 S.W. 255

71 Ark. 117

SPARKS v. FARRIS

Supreme Court of Arkansas

December 20, 1902

Appeal from Benton Circuit Court, JAMES M. PITTMAN, Judge.

Affirmed.

Action of ejectment by Joseph E. Sparks and another against R. A Farris and wife. From a judgment in favor of defendants plaintiffs have appealed.

Judgment affirmed.

E. P Watson, for appellants.

Appellee had no right or claim to the land after forfeiture to the state. 46 Ark. He could not claim adversely under his donation certificate. Sand. & H. Dig., § 4819; 68 Ark. 283. Adverse possession must be established by clear and positive proof. 1 Am. & Eng. Enc. Law, 887; 28 Wis. 226. Every presumption is in favor of the true owner. Sidg. & Wait, Trial of Tit. to Land, § 749; 43 Ark. 469; 57 Ark. 97-104; 68 Ark. 551. The statute of limitations began to run after the time of redemption had expired. 60 Ark. 168. A void tax deed does not carry constructive possession. 67 Ark. 411.

J. A. Rice, for appellees.

Entry and adverse possession under claim of title is disseizin. Ang. Lim. (6th Ed.), § 385; 13 Ark. 448. Constructive possession will be presumed upon a void tax title, and the statute bar will run against infants. 59 Ark. 460; 58 Ark. 151; 57 Ark. 523; 53 Ark. 400.

OPINION

BUNN, C. J.

The plaintiffs, Joseph E. Sparks and Margaret Wittmer, are the children and only heirs of Lydia Sparks, nee Lydia Thomas, daughter and devisee of Joseph Thomas, deceased, by whose will the said Lydia Sparks owned the lands in controversy, to-wit: The south half of the northwest quarter of section 5, township 18 north, range 33 west, situate in Benton county, Arkansas. Said Lydia was married to J. M. Sparks in June, 1872, and died in March, 1884, intestate, leaving surviving her children and sole heirs at law, Joseph E. Sparks, Margaret Wittmer, Isaac Sparks and Lydia M. Sparks; Isaac M. Sparks and Lydia M. Sparks not being parties hereto, for some cause.

Joseph Thomas, the ancestor, was the owner of the land in controversy, and died in Benton county, Arkansas, in November, 1882, having made a will in which he devised the land in controversy to his daughter, Lydia, as aforesaid. The will was duly proved by the clerk of the probate court, and by him recorded, but the minutes of the proceedings of the probate court do not show any order of probation by that court.

It is agreed that the records of the office of the county clerk of Benton county show that the lands involved were duly assessed by the assessor of the county for the taxes of the year 1884, and the taxes duly levied thereon for that year. That said taxes were not paid. That the collector returned said lands as delinquent in 1885 for the non-payment of the taxes of 1884. That the clerk of the county did not record said delinquent list in a book kept for that purpose; nor did he certify at the foot of such record, stating in what newspaper said delinquent list had been published and the date of publication, and for what length of time the publication was made, before the first Monday next ending. That said delinquent list was not published weekly for two weeks between the fourth Monday in April and the fourth Monday in May, 1885. That said 80-acre tract was assessed as such, and for a greater amount than was due thereon for the year 1884, and was sold for a greater amount than was legally due thereon. That said tract was not redeemed from said forfeiture and sale within two years from date of sale; and that, at the end of two years from said sale, the clerk of said county certified the same to the commissioner of state lands, as having been stricken off to the state at said sale as land forfeited to the state for said delinquent taxes, penalty and costs thereon, and that the same were entered in the books of the office of said commissioner as lands forfeited to the state as aforesaid, and as lands subject to donation or purchase from the state, under the statutes made and provided therefor. That said Lydia Sparks, nee Thomas, never disposed of said lands in any manner, but remained the owner of the same until her death, which occurred, as stated, in March, 1884.

It is agreed also that the plaintiffs, Joseph E. Sparks and Margaret Wittmer, each owning an undivided one-fourth interest in said lands by inheritance from their mother, were born, respectively, March 21, 1873, and February 2, 1976, the one being eleven and the other eight years old at the time of the death of their mother.

It appears that R. A. Farris, the defendant, made application to donate this tract from the state sometime in the year 1888 or 1889, and received his donation certificate, and immediately entered upon the land, and in proper time made the necessary improvements under the statute, but it appears that, in making his application for the donation, he made it as if he desired to make it an independent donation whereas, in fact, as he claims, he intended to apply to donate as land adjoining lands already owned and occupied by him. Finding this difficulty in the way, he surrendered his certificate and donation entry, and purchased the...