St. Louis Refrigerator & Wooden Gutter Company v. Langley

Decision Date09 July 1898
Citation51 S.W. 68,66 Ark. 48
PartiesST. LOUIS REFRIGERATOR & WOODEN GUTTER COMPANY v. LANGLEY
CourtArkansas Supreme Court

Appeal from Clark Circuit Court in Chancery, RUFUS D. HEARN, Judge.

STATEMENT BY THE COURT.

This suit was begun in ejectment for eighty acres of land. Afterwards an amendment to the complaint was filed, and the case, on motion of the plaintiff, was transferred to chancery, where the defendant filed an answer, and the cause was heard, and decree rendered, and this appeal prosecuted.

The special findings of fact by the court are full enough to outline the contention of both parties. Substantially, they are as follows: That the eighty acres of land in controversy were forfeited, sold, and duly certified to the state for taxes of 1873-1875. That on May 23, 1882, the commissioner of state lands granted to appellee a homestead donation certificate, and on proper proof, on October 4, 1883 executed to him a donation deed for said land, which deed was recorded January 30, 1893. That immediately after May 23 1882, appellee entered upon said lands and remained, by himself and his tenants, in the actual and visible possession of same until December 1, 1892, assessing and paying all taxes thereon, when appellant took possession thereof claiming title by the following chain, viz: That on April 19 1892, "an overdue tax" suit was instituted in Clark county, in which said land was included. That same was, according to law, by the chancery court, condemned to be sold for the taxes of 1873-1875, costs, etc., and under said decree a sale was had October 2, 1882, and said land was then sold to the state for the said taxes, costs, etc., due thereon, which sale was duly confirmed by said court, and afterwards duly certified to the state land office. That on June 5, 1886, the state, by its said commissioner, conveyed by "overdue tax deed" said lands to J. A. Smith, which deed was recorded September 3, 1887. That on September 9, 1887, said Smith, by his warranty deed, conveyed same to appellant, which deed was recorded September 10, 1887. That neither said Smith nor appellant had any actual notice of the claim of appellee, and both were purchasers in good faith for a valuable consideration.

The court found, as matter of law, that appellee's title was prior and superior to that of appellant. That appellee's damages, by reason of the cutting of timber from the land, was $ 188.15, and for all other damages, $ 150.00; which amounts were decreed to him, less $ 8.64 for taxes paid by appellant. Appellant excepted, and appealed to this court.

Decree reversed and remanded.

J. H. Crawford, for appellant.

He who purchases land bid in by the state at an overdue tax sale has a better title than one who claims under a donation certificate issued pending said overdue tax litigation. Act March 12, 1881, §§ 2, 3, 6, 7, 15; 13 S.W. 597. It is the general policy to uphold overdue tax titles, when the sale is regular. 49 Ark. 336; 53 Ark. 430, ib. 445: ib. 449; 57 Ark. 423; 63 Ark. 1. A purchaser pendente lite take subject to the decree. 11 Ark. 411; 12 ib. 564; 29 ib. 358; 36 Ark. 217; 57 Ark. 97; ib. 229; ib. 573; 45 Ark. 420; 21 Ark. 131, 136. The state and its grantees will not be estopped by the unauthorized acts of its public officers. 39 Ark. 580, 583; 40 Ark. 251, 256; 42 Ark. 118, 121; 1 Gill (Md.), 430; S. C. 39 Am. Dec. 658; 34 Ark. 590, 596. The state is not included in the act of the legislature making an after-acquired title inure to the benefit of one to whom a conveyance had been made of property not the grantor's at the time of so conveying. Sand. & H. Dig. § 699; 32 Ark. 43, 511; 61 Ark. 407, 409; 36 Ark. 158, 159.

T. J. Langley, pro se.

The after-acquired title inured to the benefit of appellee. Mansf. Dig., § 642; 33 Ark. 251; 15 Ark. 73. The titles being derived from the same source, the elder must prevail. 41 Ark. 17; 44 Ark. 5, 17. Appellant should have commenced proceedings to set aside appellee's deed within two years. Mansf. Dig. §§ 4475, 5791; 32 Ark. 131.

WOOD J. RIDDICK, J., dissents.

OPINION

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

Both parties to this litigation deraign title from the state--the appellant through an overdue tax deed dated June 5, 1886, and the appellee through a donation deed dated October 4, 1883. The question is, who has the fee simple title?

Section 2, act March 12, 1881, provides for the filing of the complaint in an overdue tax suit, and that the clerk should enter on the record of the court an order to the effect that "all persons having any interest in said lands, or any of them, are required to appear in said court within forty days from that date, then and there to show cause, if any they can, why a lien shall not be declared on said lands for unpaid taxes, and why said lands should not be sold for non-payment thereof. " Section 3 provides for the publication of said order, and that "such publication shall be taken to be notice to all the world," etc. Section 6 provides for special notice to the state by service of summons on its auditor. Section 7 provides that "in all cases where it shall be made to appear that the lands described in the complaint have been sold or forfeited to the state, the court shall inquire whether such sale or forfeiture was sufficient in law to vest a title in the state; and if the court finds that no title passed to the state by virtue thereof, the court shall proceed in the same manner as if no such forfeiture had taken place," etc. Section 15 provides that "whenever a report of such commissioner (the commissioner to sell) shall be confirmed, all objections to the sale and the proceedings thereunder shall be adjudged in favor of the validity thereof, and * * * * the court shall order the commissioner making such sale * * * * to execute a deed to the purchaser, conveying to him the land bought by him in fee simple, and such deed shall be conclusive against the world."

The state had no title to the land in controversy at the time the commissioner issued his certificate of donation. Under section 7, supra, the decree necessarily determines that, at the time of its donation, the state had no title in the land, but only the right...

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